British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
United Kingdom VAT & Duties Tribunals (Excise) Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> HSM Technologies v Customs and Excise [2004] UKVAT(Excise) E00794 (01 October 2004)
URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00794.html
Cite as: [2004] UKVAT(Excise) E00794, [2004] UKVAT(Excise) E794
[New search] [Printable RTF version] [Help]
- and –
- This is an application to re-instate an appeal which was previously withdrawn by the Appellant by a letter dated the 30 September 2003 sent by fax to the Tribunal and to the Respondents. The application was resisted by the Respondents on the grounds that there was no longer an appealable matter live between the parties.
- It was contended by the Appellant that it had withdrawn its appeal on the 30 September following an agreement reached with the Respondents that:
- Following the withdrawal of the appeal, the Respondents did re-instate the Appellant's WOWGR licence, but did not restore its stock.
- The grounds of appeal issued on the 7 July 2003 were as follows:
- The application to reinstate the appeal relates only to the second part of ground 2, and ground 4.
- On 30 April 2003 the Maidstone office of the Respondents revoked the Appellant's licence as a registered owner under the Warehouse Keepers and Owners of Warehouse Goods Regulations 1999 (WOWGR). This revocation required him immediately to destroy his certificate of registration. The Appellant was informed that it may ask for a formal departmental review of that decision. The Appellant requested a review by a letter dated 22 May.
- By a letter dated 4 June 2003 the Respondents gave notice that the Appellant was no longer able to deal in excise goods and stated that unless within 14 days the excise duty was paid on the Appellant's goods held in bond at that time those goods would be seized.
- By a letter dated 10 June 2003 Mr Shelley on behalf of the Appellant contested the Respondents' right to seize the goods. That letter was sent to Stratford East. He also protested at the demand to pay duty and requested an urgent response, but received none. The goods were seized on 24 June and a formal written Notice of Seizure was issued. The notice states that the goods are seized by force of s.49 of the Customs and Excise Management Act 1979. Accompanying that Notice was an explanatory note which stated inter alia that if the validity of the seizure was challenged, then Customs and Excise would commence court proceedings within six months that would enable the claim to be heard at the Magistrates Court. The Notice also stated that if a claim were made challenging the validity of the seizure, the associated hearing must normally take place before any request for restoration of the items maybe considered. The Notice continues: "Whether or not you have made a claim under 1. above, you must make your request in writing setting out why you think the items should be restored to you we will give you a decision as to whether we intend to restore the items to you. If we decide not to restore the items, or offer to restore them for a fee that you disagree with, you may ask us to review that decision. Your request should be in writing and clearly set out the reasons why you do not agree with our decision not to restore. … If we maintain our decision or if we do not reply within the 45 days allowed, you will have a right to appeal the decision to the VAT and Duties Tribunal."
- By a letter dated 3 July 2003 the Appellant issued a formal notice of claim against the seizure under Schedule 3 of the Customs and Excise Management Act 1979. It was contended that there had been no breach of Section 49 of the Customs and Excise Management Act 1979 as alleged in the Notice of Seizure. It was further stated that the Appellant and his solicitor, Mr Shelley, had both been informed that the only reason why the goods were being seized was by reference to the revocation of the Appellants' WOWGR licence which had nothing to do with Section 49 of the Customs and Excise Management Act 1979. It was contended that the seizure was unlawful, unreasonable and in excess of any proportionate use of the Commissioners' powers.
- Following the above events no review of the decision to revoke the licence having been carried out within 45 days of the request of 22 May, the Notice of Appeal was issued on 7 July 2003.
- By a letter dated 14 July 2003 the Respondents confirmed that condemnation proceedings would not be pursued in respect of the goods seized until the outcome of the reconsideration of the decision to revoke the Appellant's registration was known. This letter came from the Maidstone Regional Office of the Commissioners. Following the revocation of the WOWGR the Appellant had been invited to write to a review officer in Southampton. On 19 September Mr Shelley wrote to Mr Andrew Bennett of the Solicitor's Office of HM Customs and Excise in New King's Beam House with regard to the appeal.
- By a letter dated 19 September 2003 Mr Shelley also wrote to Mr R Livingstone, a Customs Officer based in Maidstone and stated inter alia:
- There had been a hearing in the Tribunal on the 19 September 2003 at which the appeal had been adjourned to 2 and 3 of October. The purpose of Mr Shelley's letter of the same date to Mr Livingstone was an attempt to settle the matter between the parties prior to the hearing of the appeal. In the event that the appeal were not settled, then it was hoped by Mr Shelley that some of the disputed issues of fact could be resolved.
- Of the 29 September there was a meeting between Mr Munawar Khan, a director of the Appellant company, and Mr Livingstone. The purpose of the meeting was to settle the appeal by agreement. There was no dispute between the parties that at that meeting it was agreed that Mr Livingstone would recommend that the WOWGR licence would be reinstated, but that reinstatement was subject to confirmation with his manager Mr Brooks. It was agreed that either Mr Livingstone or Mr Brooks would get back to Mr Khan as soon as possible, preferably that afternoon. It was further agreed by Mr Livingstone that he would also recommend that the Appellant's stock which had been seized would be restored, in which case it was agreed that the appeal would be withdrawn.
- On 30 September a fax was received by the Appellants' representative from Mr Brooks which stated that: "I agree to reinstate the WOWGR registration of HSM Technologies Limited … I understand that you and your clients will now withdraw the appeal set for hearing on 2 October. I will ask our Glasgow office to make the necessary arrangements." Following receipt of this fax on 30 September the Appellants' representative by fax informed the Tribunal that the appeal was being withdrawn and an accompanying letter stated:
- Mr Shelley also wrote to the Respondents' Stratford office on the 30 September stating in his opening paragraph: "You will by now be aware of the Commissioners' decision to re-instate the WOWGR licence to HSM and to restore the stock which was seized on 24 June. Would you please advise HSM when and how the stock is to be restored and delivered back to bond."
- On 30 September also a letter was sent by Mr Shelley by fax and post to the Solicitor's Office of the Respondents at King's Beam House by which he gave formal notice on behalf of the Appellant of a claim for damages. He stated inter alia:
- Alan Brooks of the Maidstone office of HM Customs and Excise wrote to Mr Shelley referring to Mr Livingstone's visit and stated that he agreed to re-instate the WOWGR registration and he understood that the appeal would now be withdrawn. Also on 30 September Miss Angela Stewart of the Glasgow office of HM Customs and Excise wrote to Mr Shelley stating that she had been informed that the Maidstone office had agreed to re-instate the WOWGR registration.
- By a notice dated 4 October 2003 the registration certificate giving an effective date of registration of 8 April 2002 was issued to the Appellant.
- It was not until the 20 October that the Maidstone Office wrote to Mr Shelley in response to a letter he had written dated the 11 September 2003 complaining about the length of time it was taking for a decision to be made about the registration. In that letter of the 20 October 2003 Mr Shelley was informed that the outcome of a review of the decision was that the registration should be re-instated. The letter contained an apology for the length of time it had taken to resolve the matter. By a letter of the following day, the 21 October 2003, Mr Livingstone wrote to the Appellant to inform him that the goods which had been seized had been destroyed by the Queen's Warehouse. He concluded that letter by saying: "Should you wish to pursue a claim as regards compensation for these goods, please put details in writing …" On 24 October the Appellant wrote to the Respondents' Stratford Office applying for compensation. He sent a spreadsheet showing the total amount claimed in the sum of £78,454.75, which amount included an amount for loss of profit on the sale. (The eventual amount claimed for compensation was £70,980.10 i.e. it did not include loss of profit.) The Appellant faxed the Commissioners on the 6 November 2003 asking for a reply.
- Further correspondence ensued and on the 10 December 2003 Mr Shelley wrote to the Stratford Office stating inter alia: "The WOWGR appeal was settled in September on the understanding that the stock would be returned but we were all unaware at the time that it had been destroyed."
- On the 12 December the Stratford Office wrote to the Appellant stating that they proposed to set up a case conference as there were several claims for compensation arising out of the withdrawal of his registration. Various letters followed in relation to the proposed conference. No decision was made and on the 8 January 2004 Mr Shelley wrote on behalf of the Appellant to Mrs Julie Cooze at Stratford stating that if he had not received an assurance within the next seven days that payment had been authorised he would have to raise a formal complaint. Again there was further correspondence but no resolution. On the 22 January 2004 Mr Shelley wrote to the chairman's private office at New King's Beam House setting out some of the background and also stated that he was applying to have the appeal re-instated, but would withdraw it on any offer to pay. On the same date he also wrote to the Respondents at Stratford, and he wrote to the Tribunal applying to re-instate the appeal.
- On the 9 February Mr Shelley received a letter from Stratford informing him that a meeting had been held and stating: "I am further happy to report that we are in the process of allowing the compensation claim." Mr Shelley received a letter which was also dated 9 February from Jane Kingdom of the Complaints Unit in London stating that she was arranging a full investigation into the matter. Further correspondence and delay ensued. On the 4 March Jane Kingdom wrote to Mr Shelley stating that the Complaints Unit could not "influence" the decision on whether compensation was or was not due, but could only look to see if there was unreasonable delay in reaching a decision to pay or to make an actual payment. As a decision as to whether payment would be made or not had not yet been reached, she was unable to reach any conclusive judgment. At that time it was her view that there had been two short periods of delay, one of which she considered was unreasonable. On the 19 March 2004 Mrs Kingdom wrote to Mr Shelley that the team was "Unable to look at any matter that has an avenue of appeal to the VAT and Duties Tribunal." Mr Shelley wrote to Mrs Kingdom on 31 March 2004 stating that he was surprised to have been informed by the Respondents' solicitors that no agreement had been reached to settle the appeal in September last.
- The Appellant applied to re-instate the appeal, and, following directions agreed in the Tribunal, by a letter dated 15 June 2004 Mr Shelley wrote to the Tribunal stating that he had invited Customs to clarify their position, although they had not put in reasons for objecting to the application, it was self-evident that they were opposing it. It was not clear whether:-
- By letter dated 13 July the Respondents replied stating that they would contend:
- This was the position when the application to re-instate the appeal came on for hearing on 28 July.
- The Finance Act 1994 provides:
- The Finance Act 1994 Schedule 5 provides:
- The Customs and Excise Management Act 1979 ("CEMA") provides:
- Section 49 of CEMA is headed "Forfeiture of goods improperly imported" and provides:
- The Value Added Tax Act 1994 provides as follows:
- The Value Added Tax Tribunal Rules 1986 provide:
- The Value Added Tax Act 1994 further provides as follows:
- Settling appeals by agreement
- The Appellant relied on (1) there having been an agreement between the parties on 29 September which was notified to the Tribunal by the Appellant on 30 September to the effect that the Commissioners would re-instate the Appellant's WOWGR licence and would restore the stock seized on 24 June and (2) the appeal was withdrawn on the basis of that agreement and the Respondents were notified of this fact by Mr Shelley's letter of 30 September 2003 to the Tribunal which was notified by the Tribunal to the Respondents.
- It was submitted that as no notice was given by the Respondents to the Appellant within the 30 days provided for by section 85(3)(a) of the VAT Act, therefore the appeal had been determined on the basis of the letter of 30 September as provided by section 85(4)(b) of the VAT Act.
- The Appellant further relied on the fact that an agreement to settle an appeal was a strictly contractual or consensual matter which may embrace issues which extended beyond the matters under appeal, whether or not they were appealable matters and/or whether or not they came within the Tribunal's jurisdiction.
- It was submitted by Mr Shelley that if, as a matter of law, the appeal was not settled in accordance with section 85, the Tribunal was invited to consider whether there was any other agreement which was capable of being treated as a consent issue within the meaning of rule 17 of the Tribunal Rules and to make a decision under rule 17. It was contended that in making any such determination the Tribunal should have due regard to the Commissioners' conduct and their apparent agreement to pay compensation for the seized stock as evidence that the agreement had in fact been reached and the Commissioners were estopped from asserting that there was no agreement as alleged.
- It was further submitted that if the Tribunal held that there was no such agreement reached, then the appeal should be re-instated for the Appellant's argument on restoration of the seized goods to be determined by the Tribunal. The Tribunal had jurisdiction to determine this issue as an ancillary matter, as specifically referred to in the Appellant's notice of appeal. Mr Shelley relied on section 14(1)(a)-(c), section 16(8) and Schedule 5 section 2(1)(r) of the Finance Act 1994. Mr Shelley also referred the Tribunal to the Commissioners' power under section 152(b) of CEMA to restore seized goods.
- On behalf of the Respondents it was submitted that there was an agreement to settle the appeal, but that agreement was on the sole basis that the licence would be re-instated. Both parties accepted that there had been an agreement: the issue was as to the terms of such a contract and with regard to that the Tribunal had no jurisdiction, the High Court being the appropriate forum.
- It was further submitted that, given that the Appellant was submitting that there had been a full agreement reached, and that there were no issues between the parties to be settled, the application was an abuse of process.
- It was clear on the face of the notice of appeal that the appeal was against seizure. The Tribunal's jurisdiction to deal with decisions under CEMA was contained in section 16 of the Finance Act. In the present case there had been no decision as to whether the goods should be restored, and appeals against seizure came within Schedule 3 of CEMA and were to be made to the Magistrates Court. Schedule 5 paragraph 2(1)(r) of the Finance Act was concerned with the reasonableness of any decision to refuse restoration. It was accepted that restoration had been requested, but no decision had yet been arrived at with regard to it. There was no live issue contained in the notice of appeal which the Tribunal could properly consider, given that the Tribunal could not hear appeals against seizure, as opposed to refusal of restoration.
- With regard to the issue under section 85 of the VAT Act, there was a limited jurisdiction for the Tribunal to consider the matter, it was only open to the Tribunal to say whether or not settlement had been reached, not to adjudicate on the terms of the agreement. If there had been an agreement there was nothing to be re-instated. The Act was silent as to the interpretation of a section 85 agreement, but enforcement of the Tribunal's decision came under section 85 and lay with the High Court.
- With regard to rule 17, if the Tribunal had endorsed the agreement, then it could be said it was a decision of the Tribunal, but this should be said unequivocally. In the present circumstances there was an administrative decision to take the appeal out of the list and it would be odd if the Appellant's letter of 30 September were given the force of a decision of the Tribunal.
- In the present circumstances there was a contract between the parties to compromise the appeal. The offer was to re-instate the licence, and the Appellant accepted this offer. The agreement was to withdraw the appeal and the Tribunal should not go behind this.
- There never was any indication from the Commissioners that a decision had been made to restore the goods. Mr Livingstone had no authority to reverse the decision to seize the trading stock. Letters could not form a valid notice to found a section 85 agreement. The letter of 30 September from Mr Shelley materially misled the Tribunal as to the nature of the agreement.
- The Respondents' position was that there had been an agreement between the parties, but that the Appellant was mistaken as to the nature of that agreement. However, it cannot be disputed by the Respondents that the Appellant withdrew his appeal because he believed that there was an agreement between the parties. It is also the case that the Tribunal allowed the appeal to be withdrawn on the basis of the Appellant's letter of 30 September which was notified to the Respondents. There was no hearing of the matter, however and the withdrawal of the appeal cannot be considered a decision or a direction under rule 17 of the VAT Tribunal Rules, being merely an act of the Appellant which was acknowledged administratively by the Tribunal and which required neither a decision nor a direction by the Tribunal.
- I accept Mr Smith's argument that the Respondents had not at 30 September come to any decision with regard to restoration of the seized goods. They therefore could not have agreed to the appeal being withdrawn on the basis that they would restore the goods to the Appellant. However, it is absolutely apparent from the correspondence cited above that the Appellant believed that they had so agreed, and the Respondents were aware that this was the Appellant's belief and the basis on which their appeal was withdrawn, having been notified of the Appellant's letter of 30 September by the Tribunal. It also appears that certain officers within Customs and Excise also thought that restoration had been agreed upon, namely Mr Livingstone and Mr Lawler, who, by his letter of 9 February 2004, reported that the Commissioners were in the process of allowing the compensation claim. This therefore raises the question as to whether the Respondents, by failing to give notice under section 85 of the VAT Act within 30 days of the Commissioners receiving notice that the Appellant did not desire to proceed with the appeal, and having had notice of the terms of its withdrawal, are deemed to have accepted the Appellant's withdrawal on the terms stated by it.
- Analysis of section 85(4) of the VAT Act shows that it does not allow the position contended for by Mr Shelley. Section 85(1) refers to the three different situations with regard to a decision under appeal, namely that it should be treated –
- Whilst on the face of it the seizure of the Appellant's goods could not have been made under section 49 of CEMA as the seized goods were not improperly imported, and the Appellant has at least an arguable case that there was no power in the Respondents under section 49 to seize the Appellant's goods, nonetheless the appropriate procedural steps have not been taken. A proper analysis of the situation is that, following the withdrawal by the Respondents of the Appellant's WOWGR licence, the Respondents were, subject to any review and appeal of the revocation of the licence, entitled to demand that excise duty be paid on the goods held in bond by the Appellant at that time. The demand for the payment of excise duty was presumably a decision under section 12 of the Finance Act 1994 which gives rise to the requirement for a review under section 14(1)(b) of that Act. It must however be said that we did not see any assessment as to the duty. It was following the Appellant's failure to pay that duty that the goods were seized. I do not have to decide whether the Appellant should have requested a review of the demand for duty rather than appealing against the seizure. The fact of the matter is that the Appellant did by his letter of 3 July notify the Respondents that he was making a formal claim against the seizure under Schedule 3 of the Customs and Excise Management Act. At this point the Respondents should either have initiated proceedings in the Magistrates Court, which they did not do, or, have refrained from pursuing the condemnation proceedings until the outcome of the reconsideration of the decision to revoke the Appellant's registration was known, as they did, but should have made any further action dependent upon the outcome of the reconsideration. This was not done and the Appellant was left in a state of limbo insofar as the condemnation proceedings were concerned.
- Whilst the notice of appeal purports to appeal both against the seizure and the refusal to restore the goods [whether or not the appeal properly lies by way of a request to review the decision to impose the duty, or against the seizure by way of the Magistrates Court] as at 7 July no appeal lay to the VAT Tribunal in respect of restoration of the goods because there had been no decision not to restore the goods at that time, and consequently no review (deemed or otherwise) of such a decision.
- Given that the Respondents on 30 September 2003 had decided to re-instate the Appellant's WOWGR licence, their destruction of the goods despite the Appellant's appeal against seizure, their failure to make a decision either to restore the goods or not to do so, and their further failure to notify the Appellant until February 2004 that they had not in fact yet made such a decision, are matters which give rise to serious concerns. No reason for the delay in arriving at the decision has been put forward either in correspondence to the Appellant or to the Tribunal at this hearing. I also note that in her letter of 4 March 2004 Jane Kingdom wrote to Mr Shelley that she was unable to look at any matter that has an avenue of appeal to a VAT Tribunal without stating in respect of what such an appeal might lie. At the hearing before me the Respondents stated that there was no such appeal available to the Tribunal given that there had been no decision not to restore the goods. These positions are inconsistent. Despite early notification being given to the Respondents of the Appellant's application to re-instate the appeal to the Tribunal, they still had not arrived at any decision with regard to the Appellant's goods by the time the application was heard. This has been a sorry saga of delay and confusion, and, although the Appellant has taken the wrong procedural steps in this matter, it appears quite unjust in the circumstances that he should have to wait for so long before any decision is made with regard to the Commissioners' willingness to compensate him for the seizure of his goods.
- The Respondents' argument that enforcement of the terms of settlement is a matter for the civil courts is accepted. With reluctance, this application is dismissed.
E00794
APPLICATION to re-instate appeal – Appellant's WOWGR licence revoked and goods in bond seized purportedly under s.49 of CEMA 1979 – Appellant appealed against seizure and against revocation of licence and failure to restore – Appellant withdrew appeal on basis licence would be re-instated and goods restored – Goods subsequently destroyed – Respondents to date have made no decision whether or not to restore the goods – s.85 of VATA 1994 considered
LONDON TRIBUNAL CENTRE
HSM TECHNOLOGIES Appellant
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: MISS J C GORT (Chairman)
Sitting in private in London on 28 July 2004
Mr John Shelley, Solicitor appeared on behalf of the Appellant
Mr Richard Smith of Counsel appeared on behalf of the Respondents
© CROWN COPYRIGHT 2004
DECISION
(i) the Respondents would reinstate the Appellants' Warehouse Keepers and Owners of Warehouse Regulations (WOWGR) licence and
(ii) the Appellant's seized trading stock would be restored.
1 The Respondent Commissioners revoked the Appellant's WOWGR licence (namely a licence to deal in excise goods) alleging:-
a that there was a failure to keep proper records and
b that certain goods had been purchased from an unregistered dealer.
2 A review decision merely confirms the first ground above stated but, like the earlier decision fails to specify which record or records were not allegedly kept. The Appellant further appeals against the second reason on the grounds that the Commissioners also seized certain goods and have refused to restore them.
3. The Appellant contends that it kept the records stipulated in accordance with Notice 206 ….
4. The Appellant further appeals against the decision consequent on the revocation of the licence namely to seize all of its trading stock (lawfully held in bond) following its inability to comply with a 14 day timetable to pay duty thereon.
The facts
"SEIZURE OF THE TRADING STOCK ON 24 JUNE
This is linked directly to the revocation of the WOWGR licence. The decision to seize and the failure to restore will continue to be contested unless the Commissioners agree to restore the goods should the appeal succeed. There was no need for the stock to have been seized in the first place and HSM could have been given a realistic time frame in which to sell the goods and to pay duty on removal from bonds. Will the Commissioners agree to restore if the WOWGR licence is restored and if not, why not?"
"I refer to the above appeal and I confirm my conversation of yesterday afternoon namely the hearing this week of 2/3 October will not be effective. Counsel for the Commissioners has been advised.
"The primary decision of the Commissioners to revoke the WOWGR licence for HSM has been withdrawn (copy letter enclosed) and the licence has been re-instated. The consequential decision to seize the trading stock of HSM has been reversed and the stock is to be restored.
"In the circumstances the Appellant hereby withdraws its appeal subject only to a claim for its costs which will be referred directly to the Commissioners."
This letter was notified by the Tribunal to the Respondents on the same date.
"The WOWGR licences are being restored and granted. The seizure of stock in bond is being lifted and the goods restored." It was further stated in that same letter that the appeal had collapsed "following the decisions to restore the WOWGR licences and the goods seized in bond."
1 They were asserting that there was no settlement agreement at all or
2 Whether they accepted that there was an agreement but it is a different agreement from that asserted by the Appellant.
1 That the Tribunal has no jurisdiction to consider and grant this application.
2 That there was no agreement as alleged under Section 85 VATA 1994
3 That if, which is not admitted there was any agreement it cannot commit the Commissioners to restoring the seized goods under any circumstances or pay any compensation for the destroyed goods
4 If, which is not admitted, there was such an agreement the Commissioners will contend that they are entitled to resile form it.
The Law
Section 14. Requirement for review of a decision
(1) This section applies to the following decisions, not being decisions under this section or section 15 below, that is to say –
(a) any decision by the Commissioners, in relation to any Customs duty …
(b) so much of any decision by the Commissioners that a person is liable to any duty of excise, or as to the amount of his liability, as is contained in any assessment under section 12 above;
(c) so much of any decision by the Commissioners that a person is liable to any penalty under any of the provisions of this Chapter, or as to the amount of his liability, as is contained in any assessment under section 13 above;
(d) any decision by the Commissioners or any officer which is of a description specified in Schedule 5 to this Act.
(2) Any person who is –
(a) a person whose liability to pay any relevant duty or penalty is determined by, results from what is or will be affected by any decision to which this section applies,
(b) a person in relation to whom, or on whose application, such decision has been made, or
(c) a person on or to whom the conditions, limitations, restrictions … to which such a decision relates are or are to be imposed or applied,
may by notice in writing to the Commissioners require them to review that decision.
Section 16 Appeals to a Tribunal
(1) Subject to the following provisions of this section, an appeal shall lie to an appeal tribunal with respect to any of the following decisions, that is to say –
(a) any decision by the Commissioners on a review under section 15 above (including a deemed confirmation under subsection (2) of that section); and
(b) any decision by the Commissioners on such review of a decision to which section 14 above applies …
(4) In relation to any decision as to an ancillary matter, or any decision on review of such a decision, the powers of an appeal tribunal on an appeal under this section shall be confined to a power, where the tribunal are satisfied that the Commissioners or other person making that decision could not reasonably have arrived at it, to do one or more of the following …
(8) References in this section to a decision as to an ancillary matter are references to any decision of a description specified in Schedule 5 of this Act which is not comprised in a decision falling within section 14(1)(a)-(c) above.
2-(1) The following decisions under or for the purposes of the Management Act, that is to say –
…
(r) Any decision under section 152(b) whether or not any thing forfeited or seized under the Customs and Excise Acts is to be restored to any person or as to the condition subject to which any such thing is so restored.
Section 139(1)
Anything liable to forfeiture under the Customs and Excise Acts may be seized or detained by any officer or constable or any member of Her Majesty's Armed Forces or Coastguards.
(6) Schedule 3 to this Act shall have effect for the purposes of forfeiture, and of proceedings for the condemnation of any thing as being forfeited, under the Customs and Excise Acts.
Schedule 3 of CEMA provides:
1-(1) The Commissioners shall, except as provided in sub-paragraph (2) below, give notice of the seizure of any thing as liable to forfeiture and of the grounds therefore to any person who to their knowledge was at the time of the seizure the owner or one of the owners thereof.
(1) Where –
(a) except as provided by or under the Customs and Excise Acts 1979, any imported goods, being goods chargeable on their importation with Customs or excise duty, are, without payment of that duty –
(i) unshipped in any Port,
(ii) unloaded from any aircraft in the United Kingdom,
(iii) unloaded from any vehicle in, or otherwise brought across the boundary into, Northern Ireland, or
(iv) removed from their place of importation or from any approved wharf, examination station or transit shed; or
(b) any goods are imported, landed or unloaded contrary to any prohibition or restriction from the time being in force with respect thereto under or by virtue of any enactments; or
(c) any goods, being goods chargeable with any duty or goods the importation of which is for the time being prohibited or restricted by or under any enactment, are found, whether before or after unloading thereof, to have been concealed in any manner on board any ship or aircraft or, while in Northern Ireland, in any vehicle; or
(d) any goods are imported concealed in a container holding goods of a different description; or
(e) any imported goods are found whether before or after delivery, not to correspond with the entry made thereof; or
(f) any imported goods are concealed or packed in any manner appearing to be intended to deceive an officer,
those goods shall, subject to sub-section (2) below, be liable to forfeiture.
Section 82(2)
The Tribunal shall continue to have jurisdiction in relation to matters relating to VAT conferred upon them by this Part of this Act and jurisdiction to matters relating to Customs and Excise conferred by Chapter II of Part 1 of the Finance Act 1994.
Section 83 sets out the matters which are appealable to the Tribunal under the VAT Act.
Section 84 provides that:
4(1) References in this section to an appeal are references to an appeal under Section 83.
(9) No appeal should lie under this section with respect to the subject-matter of any decision which by virtue of Section 16 is a decision to which Section 14 of the Finance Act 1994 (decision subject to review) applies unless the decision –
(a) Relates exclusively to one or both of the following matters, namely whether or not Section 30(3) applies in relation to the importation of the goods in question and (if it does not) the rate of tax charged on those goods; and
(b) Is not one in respect of which notice has been given to the Commissioners under Section 14 of that Act requiring them to review it.
16. Withdrawal of an appeal or application
(1) An Appellant or Applicant may at any time withdraw his appeal or application by serving at the appropriate Tribunal Centre a notice of withdrawal signed by him or on his behalf, and a proper officer shall send a copy thereof to [the other parties to the appeal].
17 Appeal or application allowed by consent
Where the parties to an appeal or application have agreed upon the terms of any decision or direction to be given by a tribunal, a tribunal may give a decision or make a direction in accordance with those terms without a hearing.
19(1) A tribunal may of its own motion or on the application of any party to an appeal or application extend the time within which a party to the appeal or application or any other person is required or authorised by these rules or any decision or direction of a tribunal to do anything in relation to the appeal or application (including the time for service of a notice of appeal or notice of application) upon such terms as it may think fit.
(2) A tribunal may make a direction under paragraph (1) of this rule of its own motion without prior notice or reference to any party or other person and without a hearing.
(3) Without prejudice to the preceding provisions of this rule a tribunal may [of its own motion or] on the application of a party to an appeal or application or other person interested give or make any direction as to the conduct of or as to any matter or thing in connection with the appeal or application which it may think necessary or expedient to ensure the speedy and just determination of the appeal [including the joining of other persons as parties to the appeal].
(1) Subject to the provisions of this section, where a person gives notice of appeal under section 83 and before the appeal is determined by a tribunal, the Commissioners and the appellant come to an agreement (whether in writing or otherwise) under the terms of which the decision under appeal is to be treated –
(a) as upheld without variation, or
(b) as varied in a particular manner, or
(c) as discharged or cancelled,
the like consequences shall ensue for all purposes as would have ensued if, at the time when the agreement was come to, a tribunal had determined the appeal in accordance with the terms of the agreement (including any terms as to costs).
(2) Subsection (1) above shall not apply where, within 30 days from the date when the agreement was come to, the appellant gives notice in writing to the Commissioners that he desires to repudiate or resile for (sic) the agreement.
(3) Where an agreement is not in writing –
(a) the preceding provisions of this section shall not apply unless the fact that an agreement was come to, and the terms agreed, are confirmed by notice in writing given by the Commissioners to the appellant or by the appellant to the Commissioners, and
(b) reference in those provisions to the time when the agreement was come to shall be construed as references to the time of the giving of that notice of confirmation.
(4) Where –
(a) a person who has given a notice of appeal notifies the Commissioners, whether orally or in writing, that he desires not to proceed with the appeal; and
(b) thirty days have elapsed since the giving of the notification without the Commissioners giving to the appellant notice in writing indicating that they are unwilling that the appeal should be treated as withdrawn,
the preceding provisions of this section shall have effect as if, at the date of the appellant's notification, the appellant and the Commissioners had come to an agreement, orally or in writing, as the case may be, that the decision under appeal should be upheld without variation.
(5) References in this section to an agreement being come to with an appellant and the giving of notice or notification to or by an appellant include references to an agreement being come to with, and the giving of notice or notification to or by, a person acting on behalf of the appellant in relation to the appeal.
The Appellant's case
The Respondents' case
Reasons for decision
(a) as upheld without variation, or
(b) as varied in a particular manner, or
( c) as discharged or cancelled,
Section 85(4) gives effect only to a situation where the decision under appeal is upheld without variation. There is no provision for the Commissioners to give notice in writing where the agreement is that a decision under appeal should be treated as either varied in a particular manner or as discharged or cancelled. It is not therefore open to the Appellant to rely on section 85(4) in the present case.
J C GORT
CHAIRMAN
RELEASED: 1 October 2004
LON/03/8155