United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00749.html
Cite as: [2004] UKVAT(Excise) E00749, [2004] UKVAT(Excise) E749

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Makin v Customs and Excise [2004] UKVAT(Excise) E00749 (29 June 2004)

E00749

RESTORATION — 7.5kg of hand-rolling tobacco, 200 Lambert and Butler — long term sick — two previous trips — no savings and wife and daughter to support — Commissioners acted reasonably — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

PETER THOMAS MAKIN Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: MR D S PORTER (Chairman)

MRS M P KOSTICK (Member)

Sitting in public in Manchester on 27 May 2004

The Appellant did not appear

Mr J Gray of Counsel for HM Customs and Excise forthe Respondents

© CROWN COPYRIGHT 2004


 


DECISION

1. This is an appeal by Peter Thomas Makin (the Appellant) against a decision on review of the Commissioners of Customs and Excise (the Commissioners) by letter of 11th March 2002 not to restore to him 7.5 Kg of hand rolling tobacco, 200 Lambert and Butler cigarettes, and 2 litres of spirits seized on 10th November 2001. He claims the goods were for his own use and not for resale. The Commissioners claim that the excise goods were held for commercial purposes and were liable to duty in the UK.

The Parties

2. Mr J Gray of Counsel appeared for the Respondents and produced a bundle of copy documents. As no one appeared for the Appellant this Tribunal determined to proceed under rule 26(2) of the Value Added Tax Rules 1986 (as amended).

The Facts

3. Mr Gray referred the Tribunal to the statement of case (see pages 4 to 9 of the bundle) and to the interview notes (see pages to 29 of the bundle). The Appellant had returned from Belgium having hitch-hiked from Liverpool and across the channel and back. He had made two previous trips. He had a wife and daughter at home. He suffered from depression and had been off work for some four years. At his interview he stated that he received £129 per week and that he had "scrimped and saved" to afford the £306 he had paid for the goods. He stated that he smoked between 3 and 5 pouches a week and thought that he could get about 60 cigarettes from a pouch but he was not sure. He subsequently wrote to the Respondents stating that his income was £147.45 per week and he had borrowed a large proportion of the money from his mother so that he could buy presents for Christmas in the form of hand rolling-tobacco. (See pages 32 and 33 of the bundle). His mother also wrote in to the Respondents confirming that she had lent him £200 for that purpose. (See pages 34 and 35 of the bundle).
4. In the letter of 11th March 2002 the Reviewing Officer recorded her reasons as to why she would not agree to restore the goods these were:-

•    The hand-rolling tobacco was substantially in excess of the minimum indicative levels.

•    The level of the Appellants income when set against his expenditure was such that it was not credible that he could either save £300 or sensibly spend it on the goods.

•    The answers at his interview to the customs officers questions were straight –forward but the Appellant had changed his answers subsequently in correspondence

•    The Appellant was less than clear about the quantities he smoked and the Reviewing Officer would have thought that given the substantial amount he was spending in relation to his income, the Appellant ought to have had a better idea of the number he smoked.

5. We find as fact the matters set out in paragraphs 3 and 4 above.

The Law

6. 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 from 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.

7. 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

Submissions

8. Mr Gray submitted that given the quantity of the hand-rolling tobacco, the contradictory nature of the evidence and the income and savings of the Appellant it was not credible that he would spend £306 on tobacco for his own use. In the circumstances the Reviewing Officer had acted reasonably in refusing to restore the goods.

The Decision

9. We have considered the facts in this appeal and we are satisfied that the Commissioners acted reasonably and that the goods should not be restored. We therefore dismiss the appeal
10. We also accept that the Commissioners have been put to unnecessary costs and award costs against the Appellant of £200 plus VAT.

MR D S PORTER

CHAIRMAN

29/06/2004

MAN/02/8069