United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00808.html
Cite as: [2004] UKVAT(Excise) E00808, [2004] UKVAT(Excise) E808

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ACole v Customs and Excise [2004] UKVAT(Excise) E00808 (21 October 2004)

E00807

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

MANCHESTER TRIBUNAL CENTRE

ARTHUR PATRICK COLE 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. The appellant has appealed in respect of goods seized from him at Dover on 29 November 2003. That decision was confirmed by a review conducted within the statutory time limits and notified to the appellant in a letter dated 24 February 2004; so that the appeal relates to that review decision.
2. The goods in question are not precisely specified in the notice of appeal, which refers to tobacco, wine, beer and a vehicle. The seizure information notice given to the appellant on 29 November 2003 refers to 10 kilos of HRT (hand rolling tobacco), 120 litres of beer, 10 boxes of wine and vehicle M744 JPU. A revenue goods tally sheet of the same date refers to 10 kilos of tobacco, 120 litres of beer and 45 litres of wine. That document is in fact apparently consistent with the seizure information notice, if the 45 litres of wine are contained in 10 boxes, though they are wrongly referred to as cases in it. The statement of case alleges that 30 kilos of HRT, 120 litres of beer, 72 litres of wine and 150 cigarillos were detected in the vehicle in total but wrongly attributes only 36 litres of the wine (not 45 litres) to the appellant. We will proceed on the basis that the appeal relates to 10 kilos of HRT, 120 litres of beer, 45 litres of wine and the vehicle, which was a Ford Transit Van.
3. In fact the appellant said at the hearing that he was only concerned about the van.
4. 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.
5. Two customs officers were called to give evidence. First, Mr Wills, now retired, who had carried out the review and was called to confirm his reasoning as set out in the review letter. Secondly, Mr Spain who had interviewed Miss Irza, one of the appellant's travelling companions and had witnessed the formal seizure of goods from the appellant, though he had not been involved in interviewing him. The officer who interviewed the appellant was not called. It was unclear to us why Customs and Excise chose to call those witnesses, whose evidence was of limited value but not to call the officer whose evidence was likely to have been more relevant. The appellant gave evidence but called no other witnesses.
6. It was not in dispute that the appellant and two other travellers arrived at Dover from France on 29 November 2003 in the Transit Van carrying the excise goods already referred to. It was also not in dispute that they had left Dover earlier that day and that, on departure, there had been six travellers in the van.
7. Mr Wills gave evidence that for the purposes of his review he had interpreted a notebook completed by Mr Kerr, an officer, when interviewing the appellant.
8. The respondents' case was that the appellant had given misleading information that could only have been intended to avoid the discovery of a commercial purpose in importing the quantities of excise goods in question. They contended that any goods not liable to seizure on that basis were liable to seizure under section 141 of the Customs and Excise Management Act 1979 as being mixed packed and found with those that were so liable.
9. The first note book entry said to be relevant was "Q where been" followed, on a separate line by "France, Ostend". We accept that "Q" indicates that this was a question and the next line is an answer. Obviously both are summaries and Mr Wills interpreted the reply as a deliberate attempt to mislead because of the appellant's failure to mention that he had visited Adinkerke until later in the interview when he was asked where he had bought the excise goods. Mr Wills said he thought the omission of any mention of Adinkerke at that stage was significant because it is a well known place for the purchase of tobacco and the appellant appeared to have deliberately avoided mentioning it. At first sight this seems rather a bold conclusion. Ostend is in Belgium so the appellant was not denying that he had been to that country and it is not suggested that the excise goods were concealed, so he could not have expected to avoid being asked about them, if he was stopped by Customs and Excise. However, in evidence the appellant denied that he had mentioned Ostend at all. We do not accept that. The officer could have had no reason to note it if it had not been mentioned. Accordingly, we find that the appellant mentioned Ostend. He told us that he had not been there and so it follows that, as we are satisfied that he mentioned it, the only motive can have been a futile attempt to divert attention from the discovery of the true place of purchase, once he had been stopped.
10. Asking ourselves what possible motive Mr Cole could have had for that, it seems clear that the most obvious one and indeed the only one that comes readily to mind is that he was anxious that discovery of the goods would lead to a conclusion that they had been imported illegally.
11. Mr Wills next relied upon an entry in the notebook as follows: "Q Goods" "200 pouches HRT". He interpreted this as a question about what was the totality of goods in the vehicle. If so, Mr Cole's reply was incorrect and amounted to a further attempt to deceive. We reject that conclusion. The question so briefly recorded in summary form could just as well have been a reference to Mr Cole's own goods.
12. The next questions and answers were recorded as "Q travelling with anyone else" "3 are still over there" "Q doing what" "they went off with some women". Mr Wills said that it was a common occurrence for travellers involved in illegal ventures to re-enter the UK as foot passengers, carrying excise goods, so as to conceal the true quantity being imported and then to meet up with their vehicle after passing through customs controls. This might have been an unjustified conclusion but for the fact that Mr Cole told us that the other three passengers who had travelled out were unknown to him and that he had picked them up as hitch-hikers and that they were trying to see how far they could go, by which he appeared to mean that they had continued on their journey. The difference between what Mr Cole said to the officer and what he said to us may not be of great significance but it does lend support to a conclusion that he wanted to avoid questions about the other three passengers.
13. We find that the commissioners were entitled to conclude that Mr Cole had deliberately attempted to mislead them in respect of where he had been and the question of his travelling companions and indeed that he had done so. We are not satisfied that he attempted to mislead them about the totality of the goods in the vehicle. We find that he attempted to mislead the officers in the manner described because he was trying to disguise his intentions about the goods he was importing.
14. Customs and Excise had relied upon the fact that Mr Cole admitted that he had paid for tobacco goods belonging to his travelling companion, Mr McGuire, valued at £503.25. In evidence, he said that this was because there was a queue and he was more conveniently placed to pay. However he did not explain how he came to have so much money to hand in cash, apparently well in excess of what he intended to spend. It was clear that it was cash because, in interview, he said his wife had drawn it out of the bank.
15. Mr Wills also relied upon the fact that at the relevant time the appellant, as he admits, had an income of only £144 a fortnight in state benefits, all but £4 a week of which he gave to his wife who looked after the family finances. Clearly to spend even £500 on tobacco when one has an income of £4 a week is unlikely; to spend £500 and to have another £500 to hand to assist a friend is less likely. Further, as we shall mention below, this was not the only trip the appellant had made on which he had spent significant sums of money.
16. It is true that the appellant had said that the money he spent on the trip in question was from savings he had made when he was employed but he produced no evidence to confirm his savings and when cross-examined by Mr Gray, who asked if the tobacco was bought from savings, he gave the curiously inconclusive answer "you could say that".
17. We conclude that the purchase of tobacco was in excess of what the appellant could have afforded on any reasonable view of his financial situation and that the commissioners were entitled to reach that conclusion when reviewing the decision not to restore the goods and vehicle. We find as a fact that he could not have afforded the goods without some expectation of recompense and as he did not claim that he had bought them for friends and family with an expectation of re-imbursement it is our conclusion that he had bought them for resale. We note that Mr Cole did say that some of the goods were presents for family members but as our conclusion is that he could not afford them and his evidence was that they would not be paying him it follows that we reject his claim that all the goods were presents.
18. Mr Cole's claimed consumption rate of tobacco was not consistent with the length of time he estimated the tobacco would last but we do not place much weight on that as the time was only estimated.
19. Customs and Excise alleged that Mr Cole had made two previous trips shortly before the one with which we are concerned and, although his memory for dates was not good, Mr Cole agreed that he had done so. These trips were in the period of a few weeks before the one with which we are concerned.
20. He claimed that, on the first of the three trips, he had gone to buy alcohol for a wedding anniversary party for his parents in law but forgot to buy champagne so he went back on a second trip for that and for more alcohol for the party. He admitted that he would not have gone to buy just the champagne as only two magnums were required, which would not have been a worthwhile amount to justify a trip from Lancashire to France, but he failed satisfactorily to explain why he had bought more alcohol on the second trip and why he had not bought it all on the first trip, other than the champagne which he had forgotten. He was adamant that he had only bought a small amount of tobacco on the first of those two trips because "it was a booze trip" but, given that on the first trip he was not expecting to have to go again and that his account is that he only went again when he realised he had forgotten the champagne, that seems an unlikely explanation. It is even more implausible that he would not have bought tobacco on the second trip when he claims he did buy the champagne unless he was expecting to make another trip. It is clear that if Mr Cole could afford the tobacco on the third trip he could have afforded it on either of the first two because he had had insufficient time to save enough to buy the tobacco between the second and third trips.
21. We find that the respondents were entitled to take account of the earlier trips as evidence refuting what Mr Cole has said about the third trip. We find it is the case that those trips involved previous commercial importations.
22. We reject the evidence that Customs and Excise sought to rely upon about goods being seized from Mr Cole on another occasion, when he was alleged to have returned from Germany. No evidence was produced to show that it was Mr Cole who had been the subject of that seizure and he was adamant that he had not been to Germany for many years. He accepted that a small amount of tobacco was seized from him on his return from a trip outside the EU more recently but the quantity was not so significant as to add to the case against him for commercial dealing, though it did confirm that he knew about excise duty, at least in general terms.
23. We accept that Mr Cole had difficulty with reading and may not have read the officer's note book before signing it but we do not regard that as invalidating its contents.
24. Mr Wills' conclusion that the importation was commercial, accords with our positive findings and, although there are minor differences in our findings from Mr Wills' conclusions about the facts as he decided they were at the time of the review, it is clear that the review decision would have been the same whether based on our findings or Mr Wills' understanding of the facts. In those circumstances the appeal will be dismissed and no further review will be directed.
25. We add one further point. Mr Wills was not fully aware of the appellant's disabilities when he made the review. The appellant receives long term incapacity benefit and it was submitted on his behalf in a letter from his wife and by him in evidence that the loss of the vehicle was a particular hardship for him because he needed a vehicle of that type to travel about in. We hold that on the facts of this case and particularly in view of the commercial nature of the importation, it is in no sense disproportionate to refuse to restore the vehicle. The earlier seizure and his evasiveness when questioned makes it clear that the appellant must have known that what he was doing was illegal and had decided to take the risk of discovery with its consequences. We were by no means convinced that the loss of the vehicle would cause the appellant any great deal of difficulty, having observed him move about the tribunal room with no apparent problem, and we hold that he has no case to argue that he will suffer disproportionately if the vehicle is not restored.
26. Neither party sought an award of costs and we make no order in that respect.

R BARLOW
CHAIRMAN

Release Date: 21 October 2004