United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00806.html
Cite as: [2004] UKVAT(Excise) E00806, [2004] UKVAT(Excise) E806

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Corbett v Customs and Excise [2004] UKVAT(Excise) E00806 (21 October 2004)

E00806

EXCISE DUTY – non-restoration – dutiable goods and vehicle used for importation of dutiable goods – appeal dismissed.

MANCHESTER TRIBUNAL CENTRE

RODNEY CORBETT Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr R Barlow (Chairman)

Mr J T B Strangward (Member)

Sitting in public in Manchester on 6 September 2004

The appellant in person.

Mr J Gray of counsel instructed by the solicitor for the Customs and Excise for the respondents

© CROWN COPYRIGHT 2004


 


DECISION

1. This appeal relates to excise goods and a vehicle seized from the appellant at Dover on 21 December 2003. The appeal is against the review dated 17 February 2004 by which the commissioners maintained their refusal to restore to the appellant the seized goods, following his request for restoration made on 22 December 2003 and an initial refusal on 14 January 2004.
2. The seized goods subject to the appeal are 870 litres of beer, a 6 kg box of hand rolling tobacco (HRT) and a Fiat Ducato Van. At the time of the seizure the appellant was accompanied by a passenger and goods belonging to him were seized but they do not form part of this appeal.
3. By a letter dated 5 August 2004 the appellant had requested postponement of the hearing of this appeal. That was refused by the tribunal but he was told he could renew the application at the hearing. At the commencement of the hearing we confirmed with Mr Corbett that he was not making an application for postponement and he said he was prepared to proceed.
4. The evidence consisted of statements of B Rayden, P Shepherd and J Aldred, all customs officers, and documents, including the letter conveying the decision on the review and a page from the appellant's bank statements. The officers' statements were admitted in evidence because they had been served on the appellant and he had not objected to their being read, either when they were served or at the hearing.
5. The tribunal's jurisdiction is limited to considering whether the review decision was one that the commissioners could reasonably have reached, though in doing so we are entitled to make our own findings of fact and to consider whether the review decision was unreasonable if it was made on the basis of wrong findings of fact, or had taken account of irrelevant facts, or omitted to take account of relevant facts, including those we find to be the case.
6. The appellant had placed considerable emphasis in his notice of appeal and when giving evidence, on the fact that he is dyslexic. We observed him take the oath without any real difficulty and, during the hearing, he took due notice of the documents shown to him and he referred to documents without difficulty. He criticised the officers who interviewed him for not having taken account of his dyslexia and for not having been trained to deal with dyslexic people. We note that the officer who interviewed Mr Corbett recorded that he requested an amendment to the note after he had been given the opportunity to read it.
7. In particular, Mr Corbett was critical of the fact that the officers failed to take account of his difficulty in remembering dates and judging the length of time that has passed since events have occurred. We are fully satisfied that no real difficulty was caused to the appellant, such as would justify any such criticism. The precise dates of previous importations were not relevant. The fact that they had occurred and the approximate times were relevant but nothing turned on precise dates.
8. The appellant also complained that he should have been allowed four hours rest before being interviewed because he had been driving for a considerable time. However, nothing suggests that he asked for time to rest before the interview and he told us that he had had no problem driving from Milton Keynes to the continent, after a day's work, on one of the earlier trips he had made. On the occasion in question in this appeal he had driven from North Wales to Oldham and then on to the continent via Dover and had returned immediately, apparently intending to continue on to Oldham. We reject the suggestion that the appellant was too tired to be interviewed.
9. In both the interview and in evidence Mr Corbett agreed that he had made previous trips to the continent on which he bought excise goods.
10. About two weeks before the seizure he had imported a box of tobacco and 40 cases of wine but this had been stolen on his return to the UK at a café on either the A1 or the M1. He did not report the theft to the police or to his insurers. He claimed it would be a waste of time to report it to the police and that he did not report it to his insurers because they would increase the premium. He implied that he had gone back on the occasion, which is the subject of this appeal, so soon after the theft, because of the loss of the goods which had been stolen. When it was pointed out to him that he had lost wine but was buying beer on the later trip he said that the wine had turned out not to be very good, claiming that a small part of the amount purchased had survived the theft. He also said that although he had bought the wine for parties most of his friends drank beer anyway.
11. Mr Corbett's explanation for his large purchases of alcohol was that he held frequent parties. He explained the tobacco on the grounds that he was both a heavy smoker and a generous giver of tobacco to friends visiting his home. He had told the officer who interviewed him that he lived in a single room rented from a friend at the friend's house and it seems highly implausible that he could reasonably have expected to be able to store the quantities of stolen wine, had it not been stolen, and the beer involved in the importation in question in this appeal, as well as having room to hold parties for sufficient numbers of guests to consume it.
12. It was also doubtful if Mr Corbett could have afforded the quantities involved. As well as the stolen consignment and the £1200 he admitted spending on the trip which gave rise to this appeal, Mr Corbett admitted that he had imported 120 cases of beer and 18 kgs of tobacco on 29 March 2003, a trip on which he had been questioned by Customs and Excise but which did not lead to a seizure. Concerning a trip in November, before the trip which gave rise to the alleged theft, Mr Corbett said he had only gone to "weigh up the job", meaning the purchase of the wine that was stolen. He also denied purchasing any significant amounts of excise goods on another trip during 2003, though on that occasion he had intended to do so but had been thwarted by a failure to obtain money when he tried to use a bank cash machine. Mr Gray commented that it seemed too convenient for Mr Corbett to be able to deny that he had purchased significant quantities on the occasions when Customs and Excise were not in a position to say otherwise. Clearly there is a suspicion of that. We are in any event satisfied that the explanations given for the purchases and the contradictions in the story about why he had to go back to buy beer to replace wine bought for parties which we regard as implausible, lead to the conclusion that the appellant's evidence was untruthful in a number of respects.
13. That conclusion is partly based on having observed the manner in which Mr Corbett gave evidence as well as on the implausibility.
14. It is in our view also justified by an examination of his financial circumstances. He produced a bank statement for the period from 14 November to 12 December 2003 on which date the balance was £3,525.40. This did not show a withdrawal that would have related to the purchase of the stolen goods, though the trip to buy them was probably before 12 December. Clearly the next page from the statements would have been relevant to the goods seized on 21 December, if they had been paid for from that account, but even assuming that this statement showed that the appellant had enough money to buy the goods bought on 21 December, it does not prove that he could afford them. His evidence was that his take home pay (i.e. profit from his courier business) after deductions (i.e. running expenses) was about £280 a week. That makes the expenditure of £1,200 for party drinks implausible especially after the recent loss of a large amount of drinks only two weeks before.
15. Mr Corbett also gave a highly implausible account of his consumption of tobacco saying that he might smoke 100 hand rolled cigarettes (one in less than every 10 minutes assuming a 16 hour day) or 80 manufactured ones.
16. Our findings of fact are that Mr Corbett was not a truthful witness and the explanations he gave were untruthful. The only reasonable conclusion to be drawn from his evidence is that he was attempting to deceive us in order to make it seem that his purchases of excise goods were not for commercial re-sale. Our finding is that he did make the purchase of the seized goods with a view to selling them commercially.
17. Our findings in this respect accord with the review and we hold that the appeal must be dismissed and that no further review should be ordered.
18. We also hold that it is largely irrelevant to consider whether the seizure of the vehicle was disproportionate because the goods were imported for a commercial purpose and Mr Corbett, as we find, knew that he was acting illegally at the time. However, even if proportionality is a relevant issue we hold that the quantity of goods involved and the deliberate nature of the contravention of the law means that the seizure was proportionate.
19. Neither party asked for an award of costs and we make no order.

R BARLOW
CHAIRMAN

Release Date: 21 October 2004

MAN/04/8045