United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00729.html
Cite as: [2004] UKVAT(Excise) E00729, [2004] UKVAT(Excise) E729

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M & M Trucks and Spares v Customs and Excise [2004] UKVAT(Excise) E00729 (24 May 2004)

Seizure of vehicle – Road tanker – Running fuel tank tests positive for green diesel – Vehicle stopped after arrival on a ferry from the Republic of Ireland – Request by owner for restoration of vehicle – Decision taken not to restore – Whether decision not to restore reasonable or not – Failure on the part of the Appellant owner to attend at hearing or provide reason for absence – Decision not to restore reasonable – S.16(4) FA 1994, s.12(2) and 13(6) Hydrocarbon Oil Duties Act 1979, s.141(1) Customs and Excise Management Act 1979

LONDON TRIBUNAL CENTRE

M & M TRUCKS AND SPARES Appellant

and –

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: MR A F W DEVLIN (Chairman)

MR J B ADRAIN

Sitting in public in Belfast on 25 April 2003

The Appellant did not appear

David Mohyuddin, counsel, for the Respondents

© CROWN COPYRIGHT 2004

DECISION

This is an appeal by the Appellants against the decision arrived at by the Respondent to confirm on review a decision originally made on 24 May 2002 not to restore a vehicle, namely a Mercedes 242i Pot rigid road tanker Registration Number H180 AAG ["the vehicle"] which had been seized by the Respondent on 26 February 2002. The Appellant carries on in business from premises at 20, Durnaroy Road, Dromintee, Newry.

Factual background

The Tribunal found the following facts to be established. On 26 February 2002 the vehicle was stopped by Customs officers upon its arrival at Canada Dock Liverpool. The vehicle had come off a ferry from the Republic of Ireland. The vehicle had previously been exported from the United Kingdom on 28 November 2001, after which date its existing Registration Number H180 AAG should not have been used. Upon being stopped, the vehicle was found to be painted in false 'Shell' livery. Samples of fuel drawn from the vehicle's running fuel tank tested positive for green diesel, a rebated heavy oil fuel.

The driver of the vehicle was found to be a Mr Patrick Flynn. He was subsequently interviewed under caution. Mr Flynn provided the following information. He informed Customs officers that the vehicle was the property of the Appellant, which was a firm involved in the sale of commercial vehicles and their spare parts. He stated that he was currently unemployed; he claimed to know a certain Mr Mark McNally, whom he claimed was the proprietor of the Appellant firm. He claimed that Mr McNally had telephoned him and asked him to drive the vehicle over to England via the ferry, in order to deliver it to a Mr Martin McLaughlin in Stockport. Mr Michael McLaughlin, the brother of Martin McLaughlin was, it was claimed travelling with Mr Flynn in order to look at some cars in England.

Nr Flynn went on to claim that he had collected the vehicle on 24 February 2002 from the Appellant's yard, and that no one else had driven the vehicle since the date and time of its collection. Mr Flynn denied having put any fuel into the vehicle whatsoever, and insisted that he was wholly unaware that it contained Rebated Fuel.

Mr Flynn had no documentation for the vehicle. He claimed after collection to have taken the vehicle to Tank Clean Services in Dublin to have it degassed, and thereafter he drown it to the ferry. Mr Flynn stated that he was not aware that green diesel was Irish rebated fuel; nor he claimed did he know that it was an offence to use green diesel in a road vehicle. On 26 February 2002 officers of the Respondent seized the vehicle.

By letter dated 7 March the Appellant's solicitors wrote and requested restoration of the vehicle. It was stated that Mr Flynn had been an employee of the Appellant who had been provided with funds to fuel the vehicle, and that he appeared to have put rebated fuel into the vehicle's tank. The Appellant claimed to have been wholly unaware of this. The letter also indicated that Mr Flynn's employment had been terminated. The Appellant denied knowing whatsoever about the incorrect livery in which the vehicle had been painted.

By letter in reply dated 7 March 2002 the Respondent sought further information from the Appellant. By letter in reply dated 15 April 2002 the Appellant's solicitors forwarded: a copy of Mr McNally's passport, a copy cheque book showing £4,300 purportedly paid in respect of the vehicle, a purchase invoice from Daniel Curtis for vehicle H180 AAG dated 22 February 2002, an insurance certificate in the name of the Appellant, and a Tank Clean invoice dated 23 February 2002 to Shell Direct for degassing 5 pots. It was stated that the vehicle had been purchased by telephone, and that Mr Michael McLaughlin had been travelling with Mr Flynn in order to show Mr Flynn the way to the yard of his brother Martin McLaughlin.

By letter dated 7 May the Respondent sought further information from the Appellant. The Appellant's solicitors replied by letter dated 13 May 2002 claiming that the additional information as sought was not relevant to the requested restoration of the vehicle. By letter dated 24 May 2002 the Respondent subsequently refused restoration. Upon review of this decision, a Reviewing Officer wrote to the Appellant's solicitors by letter dated 22 August. This letter confirmed the decision not to restore the vehicle, and stated inter alia:

[a] That the Appellant had been afforded ample opportunity in which to respond to the questions put to it by Customs officers and officials, and had failed to do so. These enquiries had related to the surrounding circumstances I which the Appellant had come to own, be in possession of and sell the vehicle, together with the background circumstances in which the vehicle had come to have been detected with related green diesel fuel in its tank;

[b] That the claim presented on behalf of the Appellant to the effect that Mr Flynn, the driver had been dismissed for misconduct had been false and misleading. In reality Mr Flynn had not even been employed at the date of the matter.

[c] That the documentary evidence provided by the Appellant in support of its factual contentions had been insufficient and inconsistent.

[d] That notwithstanding the fact that the vehicle upon interception had been found to be in false 'Shell' livery, that it had been found to have rebated fuel in its tank and that it had previously been exported from the United Kingdom in November 2001 being no longer entitled in the period thereafter to travel on the Registration Number H180 AAG, the Appellant had failed to co-operate or provide answers to reasonable and relevant questions put to it by the Respondent.

Notice of Appeal

By its Notice of Appeal dated 3 September 2002 the Appellant contended as follows:

'This vehicle should have been restored as our client was totally innocent of any wrongdoing in relation to this vehicle, the fuel having been put in the running tank by the driver. As regards the livery of this vehicle, our client was not aware of the livery. He was just selling on a vehicle which he had purchased over the phone based on its age, make and mileage.'

Decision

This is an appeal under section 16 of the Finance Act 1994, in which the disputed decision is the decision taken by the Respondent to confirm on review an earlier decision dated 22 August 2002 not to restore to the Appellant a vehicle seized by the Respondent. Pursuant to section 16[6] of the Finance Act 1994 the burden of proof in this rests upon the Appellant.

The hearing was scheduled before this Tribunal, and the parties notified accordingly. The Appellant failed to appear. No application was made or had been made for the hearing to be adjourned or postponed. Nor was any reason put forward as to why the Appellant was not or would not be in attendance. Upon application made on behalf of the Respondent, the Tribunal decided in the circumstances to nevertheless proceed in the absence of the Appellant to hear and determine the appeal.

The jurisdiction of this Tribunal in connection with this appeal is as set out at section 16[4] of the 1994 Act. This provides as follows:

'In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of an appeal tribunal on an appeal under this section shall be confined to a power, where the tribunal are satisfied that the Commissioners or other person making that decision could not reasonably have arrived at it, to do one or more of the following, that is to say:

[a} to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct;

[b] to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision; and

[c] in the case of a decision which has already been acted on or taken effect and cannot be remedied by a further review, to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future.'

For the Tribunal's supervisory jurisdiction to arise, it is clear from the above that the tribunal must be satisfied, the burden resting upon the appellant in this regard, that the decision under appeal is a decision which could not reasonably have been arrived at. In this regard, the tribunal would need to be satisfied that the Reviewing Officer on review for example took into account a factor or factors which were irrelevant, or failed to take account of a relevant factor or factors, or made an error of law, or otherwise generally arrived at such a decision on the facts as was such as no reasonable body of Commissioners could have arrived at.

The vehicle was found to have green rebated diesel present in its running tank. There was accordingly established a breach of section 12[2] of the Hydrocarbon Oil Duties Act 1979. Since there was established a breach of section 12[2] of the Hydrocarbon Oil Duties Act 1979, the offending fuel taken into the vehicle was itself liable to forfeiture under section 13[6] of the same Act.

The Tribunal also finds that since the fuel itself was liable to forfeiture, so was the vehicle into which that fuel had been taken, pursuant to section 141[1] of the Customs and Excise Management Act 1979.

It is for the Appellant by means of this appeal to challenge the decision taken herein by the Reviewing Officer on appeal. On the basis of the documentation placed before the Tribunal, and in the unexplained absence of the Appellant or its representatives at the hearing of the appeal, it is abundantly clear that the Appellant cannot begin to discharge the burden resting upon it in this regard. No convincing reasons have to date been provided by or on behalf of the Appellant as to why restoration of the vehicle would or could be warranted. We accept that the Appellant failed and omitted to give adequate information to the Commissioners upon request during the course of their investigations. We also accept that the supporting documentary evidence provided by the Appellant was wholly inadequate and unsatisfactory. The Appellant's version of events was substantially contradictory and inconsistent with that advanced by the driver Mr Flynn, and no satisfactory reason had ever been forthcoming by or on behalf of the Appellant as to why these discrepancies should have existed. The Tribunal has on the basis of the findings of fact outlined above, and on the basis of the documentary material placed before it little difficulty in accepting that the decision of the Reviewing Officer on 22 August 2002 was entirely reasonable and appropriate in the circumstances.

The appeal is therefore dismissed.

A F W DEVLIN

CHAIRMAN

RELEASED:

LON/02/8262