United Kingdom VAT & Duties Tribunals (Excise) Decisions

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Cite as: [2004] UKVAT(Excise) E779, [2004] UKVAT(Excise) E00779

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Roebuck& Ors v Customs and Excise [2004] UKVAT(Excise) E00779 (13 August 2004)

E00779

EXCISE DUTY — father and two sons importing 18 kg hand rolling tobacco and 15,000 cigarettes — forfeiture of goods — whether goods should be restored — whether review decision was reasonable — whether tobacco was for own use — appeal allowed

MANCHESTER TRIBUNAL CENTRE

PETER ROEBUCK Appellant

STEVEN PAUL ROEBUCK

GARY ROEBUCK

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr I E Vellins (Chairman)

Mrs G Pratt (Member)

Sitting in public in York on 22 July 2004

Mr Peter Roebuck for the Appellants

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

DECISION

In this appeal the Appellants are Peter Roebuck together with his sons Steven Paul Roebuck and Gary Roebuck who reside in Leeds. They were stopped at Eastern Docks, Dover on 14 June 2003 when they were returning from a coach trip to Luxemburg and France with 18 kg tobacco, approximately 15,000 cigarettes, 1.2 litres of vodka, 2.25 litres sparkling wine and 1.4 litres whisky. These were seized by the Commissioners. They requested restoration of the goods on 18 June 2003. A decision was made by the Commissioners to refuse restoration of the goods on 31 July 2003. The Appellants requested a review of that decision. Following a review the decision not to restore was confirmed to the Appellants by the Commissioners on 13 November 2003. Each of the Appellants appealed by notice dated 29 November 2003 in which each Appellant contended that "the goods were for my personal use and not for resale".

At the hearing of this appeal at York on 22 July 2004 Mr Peter Roebuck attended to represent himself and his two sons. The two sons did not appear or attend. The Commissioners were represented by Mr R Spragg, counsel.

The evidence on behalf of the Commissioners was in the form of witness statements from the officers at Dover and from the review officer which had been served on the Appellants. The Appellants had not made any objections to the witness statements. In the Commissioners' bundle were also letters which Mr Peter Roebuck had written.

At the hearing of the appeal Mr Roebuck gave evidence on behalf of himself and his sons.

From the evidence we find the following facts.

The interviews at Dover

The interview of Mr Peter Roebuck at Dover was conducted by an officer of the Commissioners, Michelle Toptalo. She asked Peter Roebuck if he was travelling alone. He replied in the affirmative. He agreed that he had been travelling on a coach. He was asked if he had purchased any cigarettes or tobacco and replied that he had purchased enough for him and his sons. The officer then asked him if his sons had travelled on that day and he replied in the affirmative. The officer asked him why he had told her that he had been travelling alone, and he replied because one son was ahead and the other one had been pulled in by the officer.

Peter Roebuck told the officer that he had been to Luxemburg and that he had purchased with his sons 15,000 cigarettes and 18 kg tobacco which was to be shared equally among them. He told the officer that his share of the goods was for himself and his wife. In total the three of them had purchased three boxes each containing 25 cartons of 200 cigarettes and 12 packs of 6 kg tobacco. He said that it was all their money and that he had paid the cashier and that his share had cost £800. He said that he was a bricklayer and gave details of his wages. His wife worked in a hospital. He and his wife had substantial savings of over £200,000. He had paid for the goods with cash from his wages. He said that he smoked Regal cigarettes but also liked tobacco. He smoked about 300 to 400 a week, about 50 a day, made up of cigarettes and tobacco. When he rolled cigarettes he rolled approximately 30 to 35 from a 50 gram pouch of tobacco. His wife smoked 300 cigarettes a week but no tobacco. He had hoped that the goods would last him for about one year. He had in his pocket a packet of 20 Regal cigarettes with 18 left in the packet. He said that he used his son's lighter. He had last travelled about five years previously and was aware of the Customs guidelines and had seen Public Notice 1 given to him by the bus driver.

Mr Peter Roebuck was asked why he and his sons were not walking through the controls together. He replied that they were told to come off and got in the wrong queue at Immigration and got split up, and he had not known where to go. He said that his eldest son, Gary, lived with him, and that he and Gary worked together as bricklayers. He said that Gary had a similar income to his. He confirmed that all of the goods carried between Peter Roebuck and his sons were for the joint purchase and that they had got all the tobacco and cigarettes together in Luxemburg and had not bought any goods on the ferry.

Steven Roebuck was interviewed by another officer of the Commissioners, Mr Gary Rodgers. The officer asked him if he was travelling alone and he replied "yes I'm on a coach". He said that he had been to Luxemburg. He was carrying bags. He said that in one bag was Golden Virginia tobacco although he did not know how much, and in the other bag was 25 sleeves of Regal cigarettes. He had had no dealings before with the Commissioners and was aware of the prohibitions and restrictions. The officer tallied the goods which were 7.5 kg Golden Virginia hand rolling tobacco, 5,140 Regal cigarettes, 2.25 litres of sparkling wine and 1.4 litres of whisky. When asked what he would do with the goods he replied "For me. Smoke 'em". He said that the goods cost just over £700. He was asked if he had a receipt but he replied that he did not, and that he did not know where it was gone but he had one in the shop. He said that he smoked two pouches of hand rolling tobacco a week and would roll 100 to 110 roll ups per pouch. He just smoked cigarettes at the weekend, about 40 a night. Some were for his girlfriend and she smoked 30 to 40 a day. He worked as a fabricator welder and gave details of his income. He lived with his girlfriend in a council house and gave details of his outgoings. He said that he spent on smoking between himself and his girlfriend about £15 per day, about £105 per week. He had in his pocket an open packet of Regal cigarettes marked "L" and a lighter. He said that this came out of the open carton. He said that he had bought 26 cartons. He had read the leaflet on the coach. He had last travelled abroad to Greece in 2000 on holiday.

Mr Steven Roebuck was questioned by the officer about having initially told the officer that he had 25 cartons of cigarettes, and the officer asked if he had bought 26. He replied that he had got one on the ferry. The officer indicated that this was marked "Luxemburg". Steven Roebuck told the officer that he had bought them off a bloke on the ferry as he did not wish to open the others that were on the coach. He did not know the name of the bloke on the ferry but it was not his brother or father. The officer then asked him if he had travelled with his brother and father and Steven Roebuck agreed that he had. The officer asked him why he had initially told the officer that he had travelled alone. Steven Roebuck replied "In my eyes I'm a bloke". He confirmed that his father had the receipt for all the goods, although from his initial analysis the officer thought that he had purchased the goods on his own behalf and got a receipt for himself and mislaid it. The officer asked him if the tax had been paid in Luxemburg on the carton of cigarettes that he had bought on board. Mr Steven Roebuck replied "no". The officer pointed out that when he and his brother had been stopped there was "one carton down" but Steven Roebuck stated that these cigarettes "were not that".

While Mr Peter Roebuck was being questioned, Gary Roebuck came back into the baggage examination area to join his father, after Gary Roebuck had already walked through the controls a short while before. An officer asked him about the goods that had been with him. Gary Roebuck told him that the goods were on the coach. He said that he had been with his father and brother. He said that he had a box of vodka on the coach. When the officer examined the coach he found a blue carrier bag containing tobacco goods which Gary Roebuck agreed were his goods.

Gary Roebuck was interviewed by an officer, Russell Osbourn. He told the officer that he had been to Luxemburg and had bought 25 cartons of Regal cigarettes and 12 packets of tobacco costing roughly £800 each. He had travelled with his father and brother. He said that they had put their money together and that the receipts for the goods was all contained in the one receipt. He stated that he was not a revenue trader and that no one had assisted him with the finance of the purchase of the goods. He confirmed that he was a 33 year old bricklayer and that he had used his own money. He intended to smoke the goods himself with some for his girlfriend and some for his grandfather. He said that he smoked 30 to 40 a day, both cigarettes and roll ups, but mostly roll ups. He gave details of his earnings and savings and confirmed that he lived with his parents. He stated that he was not intending to sell the goods. He had last travelled abroad about a year previously when he was working in Rhodes. He stated that he rolled about 20 cigarettes a day, and smoked two or three pouches a week. He had on him a packet of Regal cigarettes with 19 cigarettes in it and a lighter. Gary Roebuck told the officer that he had been in front and when he turned round his father and brother were not there so he came back. He had left the vodka and tobacco he was carrying on the coach before he came back for his father and brother. The officer put to him that the quantities of tobacco and cigarettes did not add up, and he replied that there should be 12 kg and 15,000 cigarettes and they had bought three boxes each. He expected his cigarettes and tobacco to last about a year. He was asked why he had not told the officer about the tobacco he had carried through and left outside. He replied that the officer knew about the tobacco because it was on the receipt that his father had. He confirmed that he worked with his father.

Following the interviews the officers were not satisfied that the goods were not for a commercial purpose and were seized. Seized from Peter Roebuck were 6 kg hand rolling tobacco and 5,000 cigarettes, from Gary Roebuck 4.5 kg hand rolling tobacco, 4,800 cigarettes and 12 litres of vodka, and from Steven Roebuck 7.5 kg hand rolling tobacco, 5,140 cigarettes, 3 bottles of sparkling wine and 2 bottles of whisky.

The review

On 18 June 2003 Mr Peter Roebuck wrote to the Commissioners requesting the return of his goods and those of his sons. He had stated in the letter that they were all very tired by the time they got to Dover and the coach was only half full. He had not been sitting with his sons so they did not get off the coach together. He had noticed his younger son being stopped by Customs but he did not know that his eldest son had gone through the controls and was outside with other passengers from the coach. He stated that he had explained that they each had 5,000 cigarettes, 6 kg tobacco and 4 bottles of vodka. The sparkling wine and whisky were free drinks. He confirmed that all of the tobacco goods were on one receipt. He wrote that he had stayed to answer questions because he had done nothing wrong and wanted to get matters sorted out. He confirmed that all the goods purchased were for their own personal use and that of the close family.

Following letters from the Commissioners refusing to restore the goods, Mr Peter Roebuck wrote again requesting a review of the decision. He denied bringing goods in for sale.

The review officer accepted the request by Peter Roebuck for a review of the decision not to restore the goods to himself or his sons, out of time. The officer noted the wage slips that Mr Roebuck had sent.

The officer, Mrs H Marshall, in her letter of 13 November 2003 setting out her review, concluded that she was not persuaded to restore the seized goods to any of the three passengers, for the following reasons:-

1) Both Peter Roebuck and Steven Roebuck had told two different officers that they were travelling alone, at first, before admitting to the officers that Peter Roebuck and his two sons were travelling together. The officer concluded that they had wished to mislead the officers;

2) They had a large quantity of tobacco goods between them. It appeared that Steven Roebuck had 200 cigarettes that were not duty paid and did not qualify for relief;

3) There appeared to be 200 cigarettes missing from the 75 sleeves or cartons purchased in the shop;

4) Initially Steven Roebuck had stated that he had purchased his own goods and had lost his receipt. The officer concluded that this was a deliberate attempt by him to mislead the Commissioners. Peter Roebuck and Gary Roebuck had said that they had pooled their money to purchase the tobacco goods yet had produced no evidence to demonstrate where the money came from. The officer concluded that the goods were not genuinely shared between them but were bought in bulk for some commercial purpose.

5) When Peter Roebuck had been asked what he smoked he had replied "Regal but I do like tobacco". That statement gave the impression that he did not normally smoke tobacco. The officer queried therefore why he had purchased such a large quantity, unless it was for some other purpose. The officer considered that Peter Roebuck's statement that he obtained 30 to 40 roll ups from one 50 g pouch was unrealistic and was an indicator that he did not normally smoke tobacco;

6) When stopped by Customs they all had an open packet of Regal cigarettes on them. Those of Steven Roebuck were from the carton purchased on board the ferry, and since he appeared to have been three packets short of a full carton, it seemed likely to the officer that they all had cigarettes from this illegal carton. It was strange to the officer that two of them had only one cigarette missing from their open packet of cigarettes. The officer would have expected that heavy smokers would have smoked more than one cigarette during a sea crossing of at least one hour's duration. He concluded that they had taken one cigarette out of a packet just to give the impression that they were smokers. Peter Roebuck did not have a lighter which was unusual for a heavy smoker.

7) Gary Roebuck had said that he had purchased 75 cartons of cigarettes and 12 packs of tobacco, yet later in his interview he did not seem to know how much tobacco he had had in his bag and thought that there should be 12 kg altogether, when there were 18 kg in total. He was in fact carrying 4.5 kg tobacco and 5,140 cigarettes and Steven Roebuck had 7.5 kg tobacco and 4,800 cigarettes including the extra carton purchased on the ferry. The officer concluded that the goods had not been shared equally as one would expect and indeed as they had maintained;

8) Peter Roebuck had told the officer that he earned £330 per week net and that Gary Roebuck earned the same as him. Gary Roebuck had told an officer that he earned £500 to £600 per week which according to his wage slips was not an accurate reflection of his income. The officer concluded that Gary Roebuck had misled the officer into believing that he had a greater income than he really had.