United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00748.html
Cite as: [2004] UKVAT(Excise) E748, [2004] UKVAT(Excise) E00748

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Smith v Customs and Excise [2004] UKVAT(Excise) E00748 (29 June 2004)

E00748

RESTORATION — trip to Barcelona with friends to buy tobacco — stopped at Liverpool airport — 6,180 Lambert and Butler cigarettes, 200 Berkeley cigarettes, 7.5kg of Golden Virginia hand-rolling tobacco and 500g of Old Holborn hand-rolling tobacco — purchased for her own use — 5 trips to Barcelona in 8 weeks — refusal to restore cigarettes and spirits reasonable — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

JANET SMITH Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: D S PORTER (Chairman)

Mrs M P KOSTICK (Member)

Sitting in public in Manchester on 27 May 2004

The Appellant in person

Mr J Gray of counsel for the Commissioners

DECISION

This is an appeal by Janet Smith (the Appellant) against the refusal contained in a letter dated 8^th January 2004 to restore 6,180 Lambert and Butler cigarettes, 200 Berkeley cigarettes, 7.5kg of Golden Virginia Hand-rolling tobacco and 500g of Old Holborn hand-rolling tobacco seized on 2^nd October 2003. The Appellant claimed to have imported the goods for her own use. The Commissioners claim that the excise goods were held for commercial purposes and were liable to duty in the UK.

The Parties

Mr J Gray of counsel appeared for the Commissioners and produced a bundle of documents for the Tribunal. The Appellant appeared in person.

The Facts

The Appellant gave evidence under oath. She had flown to Barcelona on easy Jet having booked the flight via the Internet. She had flown out with two friends she had met on the aeroplane on a previous occasion at the beginning of July 2003. She was stopped in the early morning and was tired and confused. She confirmed that she had signed the interview notes as being correct. She had stated that she had been on her own. That was not true; her two friends had accompanied her. Her friends had brought in a similar amount of goods. She had stated that she had about 5000 cigarettes when in fact she had more than 6000. She had opened a packed of 200 and had told the Customs office that. She did not appear to have mentioned the hand-rolling tobacco.

The Appellant mentioned that she had travelled some 3 to 4 times before. It transpired from the easy Jet manifest that she had not only travelled at least 5 times in an eight-week period but she had also paid for her friends' tickets on the internet. These were relatively new friends whom she presumably trusted to pay her back. She confirmed at the Tribunal that she had met them in July on the aeroplane. There is no record of that flight with the evidence, which means that there must have been another occasion in July when she went to Barcelona, which would increase the trips to 6 in the two-month period. She also confirmed that she had visited Barcelona on a subsequent occasion after the 2nd October 2003 and purchased a further 3200 cigarettes to replace the ones that had been seized.

The Appellant was very confused at the hearing as to the amount of money she had to spend on herself at the end of each two weeks. It appeared that she was unemployed and she received £118 per fortnight out of which she had to pay all her outgoings. She stated that her partner was very good to her but could not identify how much money he might give her from time to time. It would appear to be in the order of £35 to £40 every other week.

The Appellant maintained that she liked Barcelona and would live there if her partner would accompany her. She also liked looking around the city. It was established that each trip was costing her at least £100 for the flight alone. If she liked shopping she would have needed more money for that and for any food she might eat whilst she was there. Clearly it was not cost effective to go to Barcelona and buy very few cigarettes as she alleged she sometimes did.

We find as fact the matters set out in paragraphs 3 to 6 above.

The Law

The Excise Duties (Personal Reliefs) Order 1992 as amended at article 3 states: -

"Subject to the provisions of this Order a community traveller entering the United Kingdom shall be relieved form the payment of any duty of excise on excise goods which he has obtained for his own use in the course of cross-border shopping and which he has transported"

"Own Use" is defined in the Order as:-

"Own Use" includes use as a personal gift provided that if the person making the gift receives in consequence any money or money's worth (including any reimbursements of expenses incurred in connection with obtaining the goods in question) his use shall not be regarded as own use for the purpose of this Order."

. The Commissioners may require the person to satisfy them that the goods are not being held for commercial purposes.

Paragraph 2 of Article 9 of the Council Directive 92/12/EEC provides the criteria which must be taken into account in establishing whether or not the products are intended for commercial use: -

The commercial status of the person holding the products, and his reason for holding them

The place where the products are located or, if appropriate, the mode of transport used

Any documents relating to the products

The nature of the products

The quantity of the products

Summing up

Mr Gray submitted that the Appellant alleged that she was travelling alone when she clearly was travelling with her two friends. She had travelled at least 5 times in the last two months and had even visited again, subsequent to her being stopped,to purchase a further 3200 cigarettes. It was not credible that she was not buying similar quantities on her previous trips. All those trips were at the same time on the same flights. The Appellant did not appear to have sufficient means to be making the number of trips and offering to pay for her friends on the basis that they would repay her. In the circumstances the respondents had acted reasonably in not restoring the goods.

The Appellant submitted that she went to Barcelona because she liked the city and that she did not always buy cigarettes. She understood that she could bring in as many cigarettes and tobacco as she liked as long as they were for her own use. In the circumstances the goods should be restored to her.

The Decision

My colleague and I have considered the facts in the case and have decided that the appeal should be dismissed. We are satisfied that the reviewing officer's decision not to restore the Appellant's goods was one a reasonable body of Commissioners could have arrived at

It is clear that the Appellant is regularly travelling to Barcelona to purchase cigarettes. In fact she appears to be doing that in concert with her friends. It is unclear how she is financing the trips, as clearly she has insufficient money of her own and according to her evidence her partner is unlikely to fund £100 or more every other week. She can, therefore, only be financing the trips from the sale of the goods when she returns.

We were not asked to award any cost and we do not do so.

D S PORTER

CHAIRMAN

29/06/2004

MAN/04/8023