United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00738.html
Cite as: [2004] UKVAT(Excise) E00738, [2004] UKVAT(Excise) E738

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Herbert (J) v Customs and Excise [2004] UKVAT(Excise) E00738 (28 May 2004)

EXCISE DUTY – Restoration of goods – 12 kilogrammes of hand-rolling tobacco – Whether imported for commercial purpose – Appeal dismissed

LONDON TRIBUNAL CENTRE

HERBERT (J) Appellant

and –

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: STEPHEN OLIVER QC (Chairman)

M M SILBERT FRICS

Sitting in public in London on 22 April 2004

The Appellant did not appear

Katrine Sawyer, counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION

1. Mr Jeffrey Herbert, the Appellant, appeals against the review decision taken by the Commissioners in a letter of 28 October 2003. The review decision concerns the earlier decision of the Commissioners not to restore certain excise goods that had been seized on 13 September 2003.
2. When the case was called on for hearing no appearance was put in for Mr Herbert. We noted from the file that Mr Herbert had written to the Tribunal to the effect that he would not be attending the hearing through ill health. We therefore decided to go ahead and hear the appeal in his absence.
3. For the record we set out the grounds of appeal in Mr Herbert's Notice of Appeal. These are:

"On the 13 September at Dover Docks the Customs seized my goods, 200 Benson Hedges cigarettes and 12 kilogrammes of Golden Virginia. I was taken into an office where I was given an interview by one of the Customs staff. I told the truth and I mean every word of was written down was the truth."

4. We considered the documentary evidence which included letters from Mr Herbert and the letter containing the review decision dated 28 October 2003. We heard oral evidence from the review officer, Mrs H B Perkins.

Factual background

5. On 13 September 2003, at Dover East Docks, Mr Herbert was stopped by a Customs officer. Mr Herbert was at the time in possession of 12 kilogrammes of Golden Virginia tobacco and 200 Benson and Hedges cigarettes.
6. Mr Herbert was questioned. In the course of the interview he told the Customs officer that the goods were for himself, although his son might take some. The goods, he said, had cost him £612 but he had no receipts. He had paid for the goods in cash with money that he had saved from his disability allowance. He said that his wife had contributed to the cost of the goods. The goods, he said, would last him for three to four months. His income included £158 per month of mobility allowance and £107 per week of disability living allowance. Other than that, he said, he had no savings and no other income.
7. In the course of his explanation Mr Herbert said that he smoked four to five pouches of hand-rolling tobacco a week on average. He qualified this by saying he smoked a pouch a day, obtaining about forty cigarettes from one pouch. On the day in question he had not been smoking because he did not like being in places where people smoked. Nor, on that day, did he have any tobacco with him. He explained that he had last purchased tobacco some three months before. He had bought the same amount. That amount was 12 kilogrammes consisting of 240 fifty gram pouches. Of his last purchase, Mr Herbert said he had only three pouches left. Reverting to the source of the money to pay for the tobacco, he said that he had saved money at the rate of £10-15 a week, being partly what his wife had given him and partly his mobility allowance.
8. Mr Herbert then signed the officer's notebook to confirm that it was an accurate account of the interview.
9. The Customs officer at Dover considered that the goods were held for a commercial purpose and seized them.
10. On 29 September 2003 the Commissioners received a letter from Mr Herbert in which he said that the cigarettes had been a present for his friend's 60^th birthday. He stated that he travelled to France once a month, usually to buy wine. Every two or three months he brought back two boxes of Golden Virginia tobacco. He found it therapeutic to mix tobacco with "a little substance". He asserted that the people who had pushed his wheelchair through Customs would be able to confirm that he never carried anything other than that every two or three months. He went on to explain that the coach was a non-smoking vehicle and when travelling he doubled his medication. If he needed to smoke the people on the bus or the ferry would give him a cigarette. The letter concluded with the claim that he did not sell the tobacco and that it was all for his own use, except for the odd pouches that his daughter would take.
11. On 20 October 2003 the Commissioners refused to restore the goods. In response to a request from Mr Herbert, the Commissioners wrote on 28 October refusing, after a full review, to restore the goods.

The appeal

12. Mr Herbert's case is that the 12 kilogrammes of hand-rolling tobacco were brought into this country for his own use. The Commissioners say that they were not held for his own use. They were therefore held for a commercial purpose. The decision not to restore the goods was not unreasonable within the meaning of Finance Act 1994 section 16(4).
13. The review decision, contained in Mrs Perkins' letter of 28 October 2003, was based, essentially, on five features of the case. In the first place, given Mr Herbert's financial position, it seemed highly unlikely to the review officer that he would have imported that particular volume of tobacco on that occasion and every three or four months unless he was expecting payment of some form or other for doing so. In the second place, Mr Herbert had demonstrated a lack of credibility when he said that the goods were for his own use. He said in the interview that some of the goods might be taken by his son; whereas in his letters he said that his daughter might take some of the goods. His letters also raised, for the first time, the suggestion that the goods were for a 60^th birthday present. The changes in his explanations called in question the credibility of any of them.
14. Third, the sheer volume of goods imported indicated to the review officer that they were likely to be held for a commercial purpose. In this connection it will be noted that, with 12 kilogrammes of tobacco, Mr Herbert was importing four times the "guide level" of 3 kilogrammes.
15. Fourth, Mr Herbert had indicated that he obtained forty hand-rolled cigarettes from one pouch of tobacco. This, in the view of the Commissioners, is an implausibly low number. The Customs work on the basis that a 50 gram pouch will yield at least sixty cigarettes. Mr Herbert's substantial underestimate in this respect throws doubts on his credibility and indicated that he may not have been an experienced smoker – or indeed a smoker at all. Moreover, it will be recalled, Mr Herbert told the interviewing officer that he had three pouches left from his last trip, two to three months earlier, when he had purchased the same quantity, i.e. 240 pouches. Over three months with a consumption of one pouch a day, Mr Herbert should (on his account) have consumed 90 pouches. What had became of the other 147 pouches? This indicated at the least that Mr Herbert was regularly disposing of substantial quantities of tobacco.
16. Lastly, there was no evidence that Mr Herbert had any tobacco on him for his own use at the time of the interview. It was, in the view of the Respondents, hard ti accept that a person claiming to be a heavy smoker would travel to Calais and back without carrying tobacco with him. The suggestion that he would rely on other travellers to supply him with cigarettes was implausible to the Commissioners. (It appears from Mr Herbert's letters that he had been on a trip from Gloucester to Calais and back.)
17. In all those circumstances the Commissioners contended that the goods had in all likelihood not been for Mr Herbert's own use and must therefore have been held for a commercial purpose. They had applied their policy not to restore the goods. That policy was not unreasonable within the meaning of that expression in section 16(4) of Finance Act 1994. There were no exceptional circumstances that the review officer was aware of in this case and that would otherwise have rendered it unreasonable to apply the policy on the facts of the case.

Conclusion

18. We have considered the points (summarized in paragraphs 13-15 above) taken into account by the review officer. We are satisfied that she took into account all relevant considerations and that she was not influenced by any irrelevant considerations. Her decision not to restore the goods seems to us to have been eminently reasonable. It seems to us, as it seemed to the Commissioners, that the goods were in all likelihood not for Mr Herbert's own use. We think that they were entirely justified in concluding that the goods were being imported for a commercial purpose.
19. For all those reasons we dismiss the appeal.

STEPHEN OLIVER QC

CHAIRMAN

RELEASED:

LON/03/8220