United Kingdom VAT & Duties Tribunals (Excise) Decisions

Barrow v Customs and Excise [2004] UKVAT(Excise) E00821 (11 November 2004)

E00821

EXCISE DUTY — importation by driver of a vehicle of 9kg hand rolling tobacco and 20 cases of beer — tobacco not all for own use — forfeiture of vehicle and goods — vehicle restored to owner of vehicle on restoration fee of £1,065 — whether that review decision was reasonable — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

JASON BARROW Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr I E Vellins (Chairman)

Mr A W Holden JP (Member)

Sitting in public in Manchester on 19 October 2004

Mr Waldron, Solicitor for the Appellant

Mr J Shields of Counsel, instructed by the Solicitor for the Customs and Excise for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION
1. In this appeal, the Appellant is Mr Jason Barrow who resides in Bury, Lancashire. He appealed against the decision of the Respondents, the Commissioners of Customs and Excise, who, on 20 October 2003 carried out a review and upheld a decision, dated 15^th September 2003 to conditionally restore a vehicle to the Appellant as the owner of the vehicle, on payment of a restoration fee of £1,065. That vehicle, a Saab registration number N204 WDP had been seized by an officer of the Commissioners at Dover on 28 August 2003 when it was being driven by a friend of the Appellant, Mr Paul Parker, containing 9kg of hand rolling tobacco and 20 cases of beer. Mr Parker had been returning to the United Kingdom in the vehicle having purchased the excise goods in Belgium and France. Mr Parker had hidden 3kg of the tobacco in the boot of the vehicle, and had initially failed to declare the goods in the boot, and Mr Parker had admitted that he had purchased the 3kg of tobacco for his friend.
2. At the hearing of this appeal at Manchester on 19 October 2004, the Appellant was represented by his solicitor, Mr Waldron. The Respondents were represented by Mr J Shields, counsel.

Background

3. On 28 August 2003, an officer of the Commissioners at Dover Hoverport stopped a Saab 900 vehicle registration number N204 WDP being driven by Paul Desmond Parker who lived in Bury. He told the officer that he had travelled from Bury to Belgium and France for the purpose of getting some tobacco and beer. He told the officer that he had bought the six kilogram box of hand rolling tobacco and beer which were on the back seat of the vehicle. He told the officer that the vehicle belonged to his friend, Mr Jason Barrow, and that the vehicle used to be Mr Parker's vehicle but he had sold it to Mr Barrow in December 2002. Mr Parker stated that he was still insured to drive the vehicle. Mr Parker was asked for the receipt for the goods and gave the officer a receipt for the box of tobacco and 20 cases of beer.
4. The vehicle was subsequently searched and was found to contain a further 3 kg of hand rolling tobacco concealed in the spare wheel well. The officer asked Mr Parker why he had hidden the 3 kg of hand rolling tobacco in the boot. Mr Parker replied, "Because it is for my friend and I knew you could not buy any for your friends". Mr Parker then gave the officer the receipt for the extra tobacco. Mr Parker decided not to stay for an interview and the officer seized the goods and the vehicle for the reasons that some of the goods had been concealed, Mr Parker had misdeclared goods, and some of the goods were for non-entitled persons. The Appellant, Mr Barrow, then wrote to the Commissioners stating that he had loaned the vehicle to his friend, Paul Parker, who had told the Appellant that Mr Parker was going to get some beer. The Appellant stated that he did this because the Appellant was going to go with Mr Parker, but had caught glandular fever and so Mr Parker had ended up going on his own. The Appellant stated that Mr Parker had got too much tobacco and the vehicle had been taken off him. The Appellant stated that he did not know about this and that Mr Parker had "got too much as he was getting some for me but he did not tell me so I knew nothing about this. I regret lending out the vehicle to Paul. But in his defence, he was trying to help me because I was ill". The Appellant asked the Commissioners to sort out matters as soon as possible as he took his daughters to school in the vehicle. He sent a copy of his vehicle registration document showing that he was the owner of the vehicle. The vehicle was registered as a 900 SE Turbo 5 door hatchback, registered on 4 January 1996, with a cylinder capacity of 1,985 cc. The previous owner had been Mr Paul Parker who had acquired the vehicle on 21 June 2002. The vehicle had been registered as transferred to the Appellant on 18 December 2002.
5. An arrangement was made for the Appellant to attend at an interview with an officer of the Commissioners. The interview took place on 12 September 2003.
6. In the meantime, the Appellant's solicitors, Waldron & Schofield wrote to the Commissioners requesting the release of the vehicle to the Appellant. They commented that the vehicle was owned by the Appellant, who was a friend of Mr Parker and who would have accompanied Mr Parker on the shopping trip to France had it not been that the Appellant was suffering from glandular fever at the time. They submitted that, ironically, if the Appellant had been with Mr Parker, the quantity of tobacco being brought in to the United Kingdom would have been acceptable within regulations. They stated that the Appellant had four children aged eleven, six, four and thirteen months, who attended three different schools and the vehicle had been used to take the children to school every morning. They stated, "Mr Barrow has had to hire a vehicle and Mr Parker is paying the hire costs, which are not inconsiderable".
7. The Appellant was interviewed by an officer of the Commissioners on 12 September 2003. He confirmed that he was the owner of the vehicle and had loaned this to Mr Parker on 28 August 2003. The Appellant told the officer that the Appellant was aware that Mr Parker was going to France and was aware that Mr Parker was going to buy excise goods. He said, however, that there was no prior arrangement that Mr Parker would bring back some excise goods for the Appellant. The Appellant said that he had not loaned his vehicle to Mr Parker before to go to France but that Mr Parker used his vehicle often. The Appellant said that he had travelled to France before to purchase excise goods and had been stopped by Customs before and had had goods seized from him, "ages ago". The Appellant told the officer that he knew Mr Parker just as a friend and that Mr Parker did not have his own car. The Appellant stated that he had not given Mr Parker any money towards the purchase of the tobacco. The Appellant said that the Appellant smoked and he usually smoked hand rolling tobacco. He said that he was currently not employed and was sick. He said that he did not expect to receive any money or excise goods for permitting Mr Parker to use the car. He said that his wife had another vehicle. He said that he had not travelled abroad during the previous 12 months.
8. On 15 September 2003, the Commissioners wrote to the Appellant, following the interview, offering to restore the vehicle to the Appellant on payment of a restoration fee of £1,065, pointing out to the Appellant that if he did not agree with that decision, he could ask for a formal departmental review.
9. On 16 September 2003, Messrs Waldron & Schofield Solicitors wrote to the Commissioners on behalf of the Appellant and Mr Parker, stating that they were aggrieved at the large amount that was being requested from them to secure the release of the vehicle and requesting that the amount be reviewed. They pointed out that Mr Parker had not contravened regulations in the past. They submitted that Mr Parker had only brought into the United Kingdom 3 kilograms of tobacco in excess of the permitted limits and that the Appellant would have accompanied Mr Parker except that the Appellant had been suffering from illness at the relevant time. They submitted that the tobacco was purely for the own use of the Appellant and Mr Parker and was not intended for resale or to undermine retail trade.
10. On 20 October 2003, a review officer of the Commissioners, Mr P A Devlin, replied to the solicitors that the Commissioners were treating the letter dated 16 September 2003 from the solicitors as a request to conduct a review. In the letter, the officer confirmed that he had completed a review and concluded that the sum of money for restoration of the vehicle should continue to stand. He pointed out that the excise goods involved totalled 240 litres of beer and 9 kilograms of tobacco and that the equivalent of the UK duty on the seized goods came to £1,065. The officer pointed out the background circumstances and the applicable legislation and the restoration policy of the Commissioners. The officer in the letter set out the restoration policy and conclusions in the following terms: -

"The Commissioners' general policy regarding private vehicles used for the improper importation of transportation of excise goods is that they will not be offered for restoration. The policy is designed to be robust in order to protect legitimate UK trade and revenue and prevent illicit trade in excise goods.

However, at the discretion of the Commissioners, vehicles may be offered for restoration or restoration in terms of the following circumstances; -

Where the excise goods were destined for supply on a "not for profit" basis, for example, for re-imbursement.

Where the excise goods were destined for supply for profit; providing the quantity of excise goods is small and it is a first occurrence.

Where the vehicle was owned by a third party owner who was not present at the time of seizure of the vehicle, and was either blameless or had taken reasonable steps to prevent smuggling in their vehicle.

In all cases, any other relevant circumstances will be taken into account in deciding whether restoration is appropriate.

It is for me to determine whether or not the contested decision is one which should be upheld, varied or withdrawn. In order to do so, I considered the decision afresh; including the circumstances of the seizure and related evidence to identify if any exceptional circumstances exist that should be taken into account and all the material that was before the Commissioners at the time the decision was made. I also examined and considered any representations made at the time the decision was made and I examined and considered any representations that have subsequently been received.

The vehicle in question is condemned as forfeit to the Crown by the passage of time and the seizure not been challenged. The issue for this review is which strand of the Commissioners' policy should be applied. I accept that the vehicle belonged to a non-travelling third party at the time of seizure.

Where the third party was innocent and uninvolved, policy is that the vehicle should be restored. This element of policy is intended to ensure a proper outcome where the vehicle owner was duped. I do not think it applies in this case.

Where the third party was reckless or in some other way blameworthy, policy is that the vehicle should be restored on payment of a sum of money. That sum should be the same as the amount of UK duty on the goods it carried, unless that amount is more than the car was worth. In the latter instance the value of the car is what must be paid.

Where the third party was complicit in the use of their car for smuggling, restoration may not be offered at all.

Mr Barrow loaned his car to Mr Parker in the knowledge that it was to be taken to France to import excise goods. He left himself wide open to the loss of the vehicle through abuse and that is precisely what happened. In instances such as this the sum to be required is the equivalent of the UK duty on the seized goods and that sum comes to £1065 in this case.

I believe that it is proper and reasonable to require it to be paid in this case and I confirm the requirement."

11. The officer notified that if the Appellant wished to contest the decision, he should lodge an appeal with the Tribunal.
12. On 17 November 2003, the Appellant's solicitors submitted a notice of appeal to the Tribunal, appealing against the review decision of 20 October 2003. They stated as the grounds of appeal that the decision was harsh and oppressive and that the vehicle had been loaned to Paul Parker in good faith and it was unjust to imply any responsibility on the Appellant for the actions of Mr Parker. They also submitted that the Commissioners, having forfeited the tobacco and beer, had put themselves unjustly and unfairly in a better position than they would have been had the duty been paid at the correct opportunity.
13. Prior to the hearing of the appeal, the Commissioners' submitted a witness statement from the review officer, Mr Devlin, to which was exhibited the notebook record of the officer who stopped Mr Parker on 28 August 2003, the seizure documents, the correspondence, and the record of the interview of the Appellant dated 12 September 2003. The Appellant did not object to the submission of that witness statement, and accordingly at the hearing, no witnesses were called on behalf of the Commissioners.
14. The Appellant himself attended at the hearing of the appeal, together with Mr Paul Parker, and both gave oral evidence at the hearing.

Evidence of Witnesses at the Hearing

15. The Appellant gave evidence at the hearing of the appeal that in August 2003, the Appellant had arranged with Mr Parker to go to the continent of Europe together to get some beer and tobacco. He had known Mr Parker for about ten years. Neither had been involved in any trade of supplying excise goods. They had intended to go to France to buy tobacco and beer for themselves. The intention had been that the Appellant would buy some tobacco for himself and his wife and he would have purchased the tobacco for their own personal use. The Appellant stated, however, that the Appellant became ill and was not able to travel and agreed to loan the Saab vehicle to Mr Parker. He said that he had only owned the vehicle for a short time but did not know for how long. He said that before he owned the vehicle, Mr Parker had owned the vehicle. He said that Mr Parker had owed him £2,000. He said that Mr Parker had had a gambling problem. He said that Mr Parker had transferred the vehicle to the Appellant to wipe off that debt. He said he did not know how much the car had been worth at the time on the open market. He could not recall the mileage of the vehicle but thought that the vehicle might have done about 70,000 miles at that time.
16. The Appellant said that no prior booking had been made for the vehicle on the ferry. He said that the intention was that they were going to drive down to the coast and then go by ferry and pay for the ferry at the time of the crossing. He said he used the vehicle mainly for the transportation of his children and when he loaned the car to Mr Parker, he arranged for the children to be dropped off first. The Appellant said that he told Mr Parker the morning before Mr Parker set out on the trip that the Appellant was not able to go with Mr Parker. He said that he had a throat problem at the time and thought that it was glandular fever. He had rung the medical centre, who had told him that it sounded like glandular fever and that he should stay in bed for three days. When he went to the doctor two days later, the doctor did not know what the condition was.
17. The Appellant stated that he told Mr Parker to go without him. The Appellant had believed that Mr Parker was to purchase excise goods for Mr Parker personally. He said that it did not occur to him, at all, that Mr Parker might use the vehicle to transport goods in excess of any permitted levels.
18. The Appellant said that the first he knew that anything was wrong was when Mr Parker telephoned the Appellant whilst Mr Parker was on his way home and Mr Parker had told the Appellant, from a coach, that the car had been taken from Mr Parker and Mr Parker had had to make his own way back. The Appellant had been very concerned and really annoyed that the car had been taken by the Commissioners and he had thought that Mr Parker would have looked after the vehicle better than that, as when Mr Parker had owned the vehicle, Mr Parker had treated it as his "pride and joy". The Appellant said that he did not know that Mr Parker had bought some tobacco goods for the Appellant. The Appellant said that if he wanted some tobacco, he would have gone himself a week or so later. He said that he had not financed the journey directly or indirectly. Mr Parker had paid for the petrol himself as there had only been a small amount of petrol in the petrol tank when the vehicle was collected by Mr Parker. The Appellant said that he did not expect to benefit financially, directly or indirectly, from anything purchased by Mr Parker. He had expected nothing from Mr Parker, who had been his friend for a long time. Mr Parker had not discussed with him, when borrowing the vehicle, about Mr Parker bringing back anything for the Appellant. He said that he smoked both tobacco and cigarettes. He stated that he smoked an average of 30 cigarettes a day and that his wife smoked between 15 and 20 cigarettes a day. He did not know the value of the vehicle at the time of the seizure but thought that it would have been worth approximately £3,000 to £3,500.
19. The Appellant stated that following the letters from the Commissioners, he had actually gone down to Dover and paid the £1,065 to get the vehicle back. He had been without the vehicle for approximately two or three weeks and during that period, his wife had used her vehicle to transport the children. He said that he did not need the car for work because he had been unemployed. He said that the statement in his solicitors' letter of 8 September 2003 that he had had to hire a vehicle with Mr Parker paying the hire costs was not in fact true as he had not hired any vehicle, nor had Mr Parker paid any hire costs.
20. At the hearing of the appeal, Mr Paul Parker gave evidence that he had known the Appellant for about nineteen years and was a close friend. Mr Parker had never traded in tobacco. He confirmed that they had intended to go together to France to buy some beer and tobacco but a couple of days beforehand, the Appellant had taken ill with throat problems which the Appellant had referred to as glandular fever. Mr Parker stated that he had then asked the Appellant if Mr Parker could borrow the Appellant's vehicle so that Mr Parker could go by himself to buy the beer and tobacco. He said that the Appellant agreed to that. He said that he had already been insured, still, to drive the vehicle, having owned the vehicle until a few months beforehand.
21. Mr Parker said that the Appellant did not lay down any terms or conditions for loaning the vehicle to Mr Parker. Mr Parker had merely intended to buy some beer and tobacco for himself. He said that when he went to France and Belgium, he did purchase some beer and tobacco and he also purchased an extra 3 kilograms of tobacco "as a thank you" for the Appellant. Mr Parker said that he bought 6 kilograms of hand rolling Golden Virginia tobacco for himself and 3 kilograms of hand rolling tobacco which he was going to give to the Appellant when Mr Parker got back. He said that the Appellant had not asked for this and Mr Parker had not told the Appellant about this beforehand. Mr Parker also bought 20 cases of beer. Mr Parker said that he was a smoker and smoked about 30 cigarettes a day, which he rolled from tobacco. He said that he smoked about two and a half pouches of tobacco a week. He said that he had calculated on the day of the hearing that the tobacco would have lasted him about 48 weeks. He said that he usually went to the continent about once or twice a year or sometimes once every two years. He had last been over one year previously to the incident when he was stopped.
22. Mr Parker said that when he was stopped by the officer at Dover, he told the officer about the 6 kilograms of tobacco in a box on the back seat and the cases of beer but he said that he was naive and did not tell the officer about the 3 kilograms of hand rolling tobacco which were in the boot, which he was bringing back for the Appellant. He gave the officer the receipt for both sets of quantities of tobacco.
23. Mr Parker said that he telephoned the Appellant from the Commissioners' shed and told the Appellant that the Commissioners had taken the vehicle from him, Mr Parker asked the Appellant to come down because the officers would only give the vehicle back to the Appellant and not to Mr Parker. He said that the Appellant could not come down at the time because he was ill. He said that the Appellant was angry because the Appellant needed the vehicle to take his children to school. Mr Parker said that for the period for about two weeks while the vehicle was impounded, Mr Parker had had to hire a vehicle for the Appellant so that the Appellant could take his children to school. He confirmed that the Appellant had not asked him to bring anything back for the Appellant himself.
24. He said that a few days later, he and the Appellant went down to Dover and were told that the Commissioners required £1065 for the vehicle to be restored to the Appellant. He said that they had not known about this beforehand and had not brought any money with them and a week later they drove down again and the Appellant paid the £1065 to the Commissioners to get his vehicle back. Mr Parker said that he realised that he had been very silly. He said "I was just trying to pay the favour back". He confirmed that the Appellant himself had paid the money to obtain the restoration of the vehicle and that Mr Parker had not contributed financially to the vehicle being restored.
25. Mr Parker accepted that he had believed that he was not allowed to bring back tobacco for his friend and that was why he had hidden it in the vehicle. He said that the Appellant had not asked him to bring back any tobacco for the Appellant and Mr Parker had not told the Appellant that he would bring back any tobacco for him.
26. Mr Parker disputed the Appellant's evidence at the hearing that the Appellant had not had to hire a vehicle and that Mr Parker had paid the hire costs. Mr Parker said that he had had to hire a vehicle and that the Appellant had used it as well. When estimating that the tobacco would have lasted Mr Parker about 48 weeks, he was only talking about the 6 kilograms of tobacco. He said that when he had transferred the vehicle to the Appellant, the Appellant had given him £3,200 and had paid the money over to him. He thought that the vehicle was probably worth more than that. He said that he used the money to pay off some gambling debts. When it was put to him that the Appellant, in evidence, had said that he had not paid Mr Parker for the vehicle, Mr Parker replied that the Appellant had actually paid over money to him, not just for the vehicle but also to enable Mr Parker to pay some gambling debts. He thought that the value of the vehicle at the time of seizure would have been about £3,000.

Submissions by Representatives at Hearing

27. Mr Shields submitted on behalf of the Commissioners that the appeal should be dismissed. He submitted that the case of the Commissioners was that they had applied the appropriate policy in the appropriate way. He submitted that the goods had been appropriately forfeited. No application had been made by way of condemnation proceedings and the goods had been deemed to be forfeited by passage of time.
28. Mr Shields submitted that there had been an element of evasion in that the excise goods had been hidden in the vehicle. He submitted that it was reasonable for the Commissioners to consider that the goods had been imported on a commercial basis. M Parker had bought 3 kilograms of tobacco for the Appellant, who was not travelling with him, on a quid pro quo basis, as a consideration for the Appellant loaning him the vehicle. It was not credible that this would not have been discussed beforehand by Mr Parker and the Appellant.
29. The goods were not for Mr Parker's own use and both the vehicle and the goods were liable to forfeiture. He submitted that the Commissioners had acted reasonably in offering to restore the vehicle to the Appellant on payment of the sum of £1065, which was the equivalent of the UK duty on the seized goods. The officer had taken into account all the circumstances. He had set out his reasons in the review letter. The Appellant had not been 'duped'. The vehicle had been used with the Appellant's knowledge and consent. He submitted that the Appellant had been reckless or blameworthy. He had left himself wide open to the loss of the vehicle through the abuse by Mr Parker. The restoration sum of £1065 was less than the value of the vehicle. He submitted that the Commissioners were applying the appropriate policy and applying it in an appropriate way. He submitted that the jurisdiction of the Tribunal was that the Tribunal should only interfere with the review decision if it was unreasonable. He submitted that the Commissioners had not acted unreasonably. He submitted that it was reasonable for them to apply the appropriate policy and that the policy had been reasonably applied to the Appellant. He stated that the Commissioners would not be asking for an order for costs if the Commissioners succeeded in the appeal.
30. Mr Waldron submitted on behalf of the Appellant that the appeal should be allowed. He submitted that the Appellant and Mr Parker were two ordinary men, with neither of them engaged in the trade or supply of tobacco. The trip had been intended for personal purposes, and the two men had intended on travelling together until the Appellant was ill. Mr Parker was intending only to purchase goods for his own personal use. When the Appellant could not travel because of his illness, Mr Parker had asked to borrow the vehicle. There was no evidence to suggest that the vehicle was either jointly owned or owned by Mr Parker. He submitted that it was not fair of the Commissioners to argue that there had been a moral obligation on Mr Parker to purchase goods for the Appellant. Mr Parker had described, in his evidence, how he came to bring back 3 kilograms of tobacco for the Appellant, without the Appellant's knowledge, which Mr Parker misguidedly placed in the tyre well of the vehicle. This was not an organised evasion. There was no evidence that the Appellant was looking for any material contribution by Mr Parker. He submitted that as the Appellant was in no way involved except by lending the vehicle to Mr Parker, he should be refunded the amount of £1065 that he had had to pay in order to obtain the release of his vehicle. He submitted that by lending the vehicle, the Appellant was not condoning the use to which Mr Parker put the vehicle in buying the additional 3 kilograms of hand rolling tobacco to give to the Appellant. He submitted that the Appellant was not in any way culpable. He submitted that the Appellant was credible and should succeed in his appeal, with an order for costs.

Findings of Fact and Conclusions

31. We have considered all the evidence in this appeal and the principles of law involved.
32. We make the following findings as fact.
33. We find that on 28 August 2003, Mr Paul Parker was travelling back to the United Kingdom from France and Belgium in the Saab motor vehicle owned by the Appellant. When stopped by an officer, Mr Parker told the officer that he had bought 6 kilograms of hand rolling tobacco and beer. He gave the officer the receipt for only that quantity of tobacco and the 20 cases of beer. When officers searched the vehicle, they found concealed in the spare wheel well of the vehicle, 3 further kilograms of hand rolling tobacco. It was only then that Mr Parker told the officers that he had hidden the 3 kilograms of tobacco in the boot, and had hidden it "because it is for my friend and I knew you couldn't buy any for your friends". At the hearing of the appeal, Mr Parker stated that he had purchased the extra 3 kilograms of tobacco as a "thank you" for the Appellant. He said he was trying to "pay the favour back". The Appellant had loaned the vehicle to Mr Parker for Mr Parker to go to the continent of Europe to purchase tobacco and beer. The Appellant had known the purpose of the trip because the Appellant and Mr Parker had originally arranged to travel together in the Appellant's vehicle, until the Appellant had taken ill shortly before the journey. Both the Appellant and Mr Parker had contended that there had been no prior discussion or arrangement that Mr Parker was to bring any tobacco for the Appellant. However, we did not find the Appellant and Mr Parker to be credible as to this contention. We did not find either of them to be reliable witnesses on the material point. The demeanour of both witnesses was evasive when they were giving their evidence. We find that there had been prior discussion between them and that the Appellant fully knew that Mr Parker intended to bring back with him to the United Kingdom some hand rolling tobacco for the Appellant as a consideration for the Appellant loaning him the vehicle to make the trip. We find that the 3 kilograms of tobacco was the reward which the Appellant and Mr Parker had agreed was the payment to the Appellant for loaning the vehicle to Mr Parker.
34. We find that Mr Parker practised deceit in endeavouring to hide part of the tobacco from the Commissioners by hiding it in the boot of the vehicle under the tyre well.
35. There were discrepancies in the evidence of Mr Parker and the Appellant as to the circumstances. We find that the solicitors were clearly being given false information on which to write their letters, when they wrote to the Commissioners that the Appellant had had to hire a vehicle with Mr Parker paying the hire costs, when the vehicle was seized. The Appellant himself, at the hearing, denied that any vehicle had been hired. The Appellant gave evidence at the hearing that originally, a few months before the trip, Mr Parker had actually owned the vehicle, but had transferred the vehicle to the Appellant to wipe off a debt of £2,000, which Mr Parker owed to the Appellant. Mr Parker, in his evidence at the hearing, stated that the Appellant had given Mr Parker £3,200 for the vehicle and had paid the money over to Mr Parker. At the hearing, the Appellant stated that Mr Parker had telephoned him from the coach on the way back to inform him that the vehicle had been seized. Mr Parker gave evidence at the hearing that he had telephoned the Appellant from the officers' shed at Dover. We find that the Appellant was not an innocent third party and was not an uninvolved third party. We find that he loaned the vehicle to Mr Parker in the knowledge that Mr Parker was to bring back for him tobacco in the vehicle as a reward or payment for the use of the vehicle.
36. We find further, that the Appellant himself was blameworthy, or at the best reckless. He knew that Mr Parker intended to use the vehicle to carry excise goods which Mr Parker was purchasing in France and Belgium and that there was at least a risk that Mr Parker was purchasing excise goods in excess of the guidelines and in excess of the quantities that he was entitled to bring back for his own use.
37. We find that the amount of the excise goods being brought back by Mr Parker is considerable. It was considerably in excess of the guidelines. By the legislation, duty is chargeable when goods are held for a commercial basis. The goods were not being imported by Mr Parker all for his own use. Some of the tobacco was being imported by him for a person, the Appellant, who was not travelling with him in the vehicle. Mr Parker had intended the 3 kilograms of hand rolling tobacco to be a reimbursement to the Appellant for the use of the vehicle to obtain the goods in question. We find accordingly that these 3 kilograms of tobacco cannot be regarded as being held by Mr Parker for his own use. Mr Parker hid the 3 kilograms of tobacco in the vehicle and was endeavouring to conceal these goods from the Commissioners. The goods and vehicle were rendered liable to forfeiture under the Customs and Excise Management Act 1979. The Appellant made no challenge as to the legality of the seizure and the goods and vehicle were condemned as forfeited under the provisions of that Act. The Act provides that the Commissioners may, as they think fit, restore subject to such conditions, if any, anything forfeited or seized. The Finance Act 1994 sets out the procedure in relation to reviews. Section 16 of the Finance Act 1994 sets out the jurisdiction of the Tribunal.
38. We find that the officer took into account all relevant circumstances in concluding that the vehicle should not be restored to the Appellant except on payment of the sum of £1065. We find that the Commissioners acted reasonably in concluding that there were no exceptional circumstances, which would justify the restoration of the vehicle to the Appellant except on those terms. The review officer acted reasonably in reaching that review decision. He took into account all the circumstances and information given to the Commissioners by the Appellant. The amount of duty evaded was £1065. The Appellant stated that the value of his vehicle was over £3,000, as did Mr Parker. We find that the refusal to restore the vehicle except on payment of the £1065 was proportionate, bearing in mind the amount of the duty evaded, the value of the vehicle and the policy of the Commissioners. We find that the terms of restoration of the vehicle were a reasonable exercise by the Commissioners of their discretion. Accordingly, we find the decision of the Commissioners was reasonably arrived at; the Commissioners have not acted in a way that no reasonable Commissioners could have acted, they have not taken into account irrelevant matters or disregarded something to which they should have given weight and there has been no error in law. We find that the policy of the Commissioners was reasonable and the policy was reasonably applied to the case of the Appellant. We find that the Commissioners acted reasonably in deciding not to restore the £1065 to the Appellant.
39. The appeal is dismissed. The Commissioners did not apply for costs and we make no order for costs.

I E VELLINS

CHAIRMAN
Release Date: 11 November 2004

MAN/2004/8081