United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00763.html
Cite as: [2004] UKVAT(Excise) E763, [2004] UKVAT(Excise) E00763

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JBroughton v Customs and Excise [2004] UKVAT(Excise) E00763 (14 July 2004)

E00763

RESTORATION OF GOODS — 1 kg of tobacco and 12,000 cigarettes seized — day trip to Barcelona — second in 3 weeks — review decision not reasonably arrived at — appeal allowed

MANCHESTER TRIBUNAL CENTRE

JOAN BROUGHTON Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mrs E Gilliland (Chairman)

Mr C B H Gill (Member)

Sitting in public in Manchester on 21 May 2004

The Appellant appeared in person

Mr J Shields, of counsel, instructed by the Solicitor's Office of HM Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION
1. This is an appeal by Mrs. Joan Broughton (the Appellant) against a decision of the Commissioners on review not to restore to her excise goods seized from her at Liverpool Airport on 10 September 2003 on her return flight from a day trip to Barcelona. The goods comprised 1 kg tobacco and 12,000 cigarettes (the goods). The Appellant has presented her own case to the tribunal and been cross-examined under oath. She has insisted that the goods were for her own use and thus within her entitlement as a cross border traveller. We have in the papers before us a copy of the manuscript record of the interviewing officer Mr. Peter Brindley. He has not attended to give evidence to the tribunal but has submitted a witness statement to which no objection has been made. After the seizure on 11 September 2003 the Appellant wrote to the Commissioners appealing against the decision. Further correspondence from the Commissioners sought to clarify whether the Appellant was seeking restoration and/or appealing against the seizure and on 19 September 2003 the Appellant wrote again and returned the standard form completed for restoration only. Restoration was refused on 13 October 2003 by Mr. Brindley and subsequent to a further letter from the Appellant the review was undertaken by Mrs. Maureen Crook who exercised her option to confirm the contested decision not to restore the goods. Maureen (Anne) Crook has not attended today but we have her witness statement dated 28 January 2004. The Appellant then appealed to the tribunal and her grounds as set out in the Notice of Appeal on 13 October 2003 were: "The reasons being that the cigarettes confiscated, were for my own personal use. I had been told by numerous people including Custom & Excise officers, that I could bring in as many cigarettes as I wanted to. I have explained all my circumstances in previous correspondence."
2. The Appellant in her oral evidence has described the background of her trip. She and a friend (Joan Russell) with another woman known to her friend but not to her had gone to Barcelona some 3 weeks before on a day trip. Another trip was planned but her friend had to pull out; the Appellant decided to go anyhow. She has said that she and the other woman were on the same flight but did not spend the day together. She has told us also that whilst each bought cigarettes her receipts showed that they did not buy these at the same time though the other person had recommended where to buy. Their only contact it would seem was to share transport to the Airport. The Appellant was stopped as it appears was the other traveller but they were separate. The Appellant had been questioned initially and then subsequently went to an interview room with the officer where she was questioned further. We have noted endorsed on the officer's record his reasons for the seizure namely: (1) Income /Expenditure (2) Mother has paid for cigarettes and flight (3) Told me you were on your own when stopped. Perhaps not surprisingly when it came to the same officer to make the initial decision on restoration he set out precisely the same reasons when he found no exceptional circumstances to justify a departure from the Commissioners policy not to restore.
3. We are told by the Appellant that in her letters to the Commissioners and indeed also in her evidence today she has sought to clarify the background to the points raised by the interviewing officer. We would mention that it is clear that the Appellant has pursued separately a complaint against the officer but that is a matter dealt with elsewhere. We do however refer since she has raised it before us to the claim by the Appellant that the officer was biased against her because she was on a job seekers allowance. The record, which she signed in two places, sets out a number of questions which she was asked about her financial position and in our view it does not emphasise one point to the exclusion of others. The Appellant has said that she was not asked about her savings and that it was not recorded after she had said that she was divorced that as she had said she had a boyfriend who gave her some money. She had also told the Commissioners in a letter that she had a pension from her previous employment with Woolworth. As to the assistance she had received from her mother that was her mother's way of thanking her though her mother had paid for the second trip not the first. She had been appointed to look after her mother's rights by the Benefits Agency. She had been away twice in three weeks for a day and back because if she was away for longer she had to make arrangements for her mother to be seen though she did not live with her. Counsel for the Commissioners has submitted that the story was incredible that the Appellant did not know about her co- traveller and that she did not mention her finances with a third party paying £1000 for a trip of this sort.
4. In matters such as the appeal we have heard today the tribunal's power is confined to a power to determine whether we are satisfied that the Commissioners or the person making the disputed decision could not reasonably have arrived at it. If not satisfied we may make one or more of three directions as set out in s.16(4) of the Finance Act 1994. We do not have authority to restore goods. Further we accept that this is not a contested seizure as the goods have been condemned as forfeit by passage of time. The Appellant has said that she made a wrong decision in not taking the route of condemnation proceedings but that opportunity has passed. The decision before us is that of Mrs. Maureen Crook in her review letter of 2 December 2003. In her witness statement Mrs. Crook stated that the documents she relied upon in order to conduct the review were the record of the interview, a copy of the seizure information form and correspondence from the Appellant. She went on to say that in the review letter she set out her understanding of the background of the case, the key elements of the law that she relied on and the Commissioners policy in relation to the restoration of excise goods. In the review letter the officer confirmed that it was within her power to uphold, vary, or withdraw the decision; that she had considered it afresh including the circumstances of seizure and related evidence to identify if any exceptional circumstances existed that should be taken into account. We have carefully reviewed the terms of that letter since we have no oral evidence from the officer. It is established law that in the exercise of a discretion the person doing so must … " direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". (Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v Wednesbury Corpn. [1948] 1 K.B.223 at p.229). Mrs. Crook stated in her conclusion that she had taken all relevant material into account and for " the reasons set out above" she would not restore. We do not however see those reasons . The officer has not explained why without further comment she has dismissed the further information and explanations which the Appellant gave in her letters. The Appellant sought to establish that the goods were solely for her own use and that she was not blameworthy. The Appellant has contended for instance that the Commissioners had not been able to say that her calculation of usage was incorrect. She also had savings of £4,000. Where, as in the instant case, the seizing officer also became the officer making the decision against restoration, it is necessary on review for the officer undertaking the same to consider the primary facts as well as, with rigour, to consider the conclusions of the previous officer in his exercise of two entirely separate roles. The review officer also said that the Appellant had not provided any exceptional or mitigating circumstances. It is not clear what would in the view of the Commissioners constitute such circumstances but it would seem necessarily to be by way of mitigation of fault when the Appellant in her correspondence and today has sought to deny any fault on her part. It is open to the Appellant in restoration proceedings to raise the issue of private use, not to challenge the deemed forfeiture but for the purposes of seeking to invoke the discretionary procedure of restoration. (See Commissioners of Customs and Excise v Dickinson [2003]EWCA (Ch) 2358 at Paragraph 45). Having heard and considered the evidence and seen the Appellant being cross – examined, we are satisfied that the Appellant was not importing the goods for a commercial purpose but for her own use. We do not consider that the decision has been reasonably arrived at.
5. The appeal is allowed.
6. We direct the Commissioners under the provisions of s. 16(4)(b) of the Finance Act to conduct a further review of the original decision not to restore the goods in the light of our observations and conclusions in paragraph 4 above. The review is to be conducted by an officer with no previous involvement and to be completed within 30 days of the release of this decision.
7. We make no direction as to costs.

MRS E GILLILAND

CHAIRMAN

Release date:14/07/2004

MAN/04/8006