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United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00827.html
Cite as: [2004] UKVAT(Excise) E00827, [2004] UKVAT(Excise) E827
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Baldwin v Customs and Excise [2004] UKVAT(Excise) E00827 (11 November 2004)

    E00827

    EXCISE DUTY — importation of 10,000 cigarettes and 6 kg of hand rolling tobacco from Majorca — aeroplane traveller — forfeiture of goods — whether decision not to restore was reasonable — appeal allowed

    MANCHESTER TRIBUNAL CENTRE

    LESLIE BALDWIN Appellant

    - and -

    THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

    Tribunal: Mr I E Vellins (Chairman)

    Mr A W Holden (Member)

    Sitting in public in Manchester on 19 October 2004

    The Appellant appeared in person

    Mr J Shields, Counsel, instructed by the solicitor for Customs and Excise for the Respondents.

    © CROWN COPYRIGHT 2004


     

    DECISION

  1. In this appeal, the Appellant is Mr Leslie Baldwin who resides in Earby, Barnoldswick, Lancashire. He appeals against the decision of the Respondents, the Commissioners of Customs and Excise, who, on 24 March 2004 on review upheld a decision not to restore to the Appellant 10,000 cigarettes and 6 kilograms of hand rolling tobacco which had been seized by an officer of the Commissioners at Manchester Airport on 8 January 2004, when the Appellant had been returning to the United Kingdom from Majorca where he had been on holiday.

  2. At the hearing of this appeal at Manchester on 19 October 2004, the Appellant represented himself. The Respondents were represented by Counsel, Mr J Shields. The Appellant gave evidence in person at the hearing. The Appellant had not objected to a witness statement in writing having been served by the Respondents, containing the statement of the review officer. The evidence of the review officer was accordingly contained in that written witness statement.

    3. Background
  3. On 8 January 2004, an officer of the Commissioners, Mrs Lisa Crowney, was on duty in Terminal 1 at Manchester Airport when she intercepted the Appellant, who had been travelling by aeroplane from Palma, Spain. The officer asked the Appellant if he had been travelling on his own. The Appellant had replied "Yes". He told the officer that he had travelled from Palma, Spain, and had been away just that week. The officer was then informed by another officer that in fact the Appellant had been travelling with another man, Mr Hanson. Mrs Crowney then asked the Appellant if he had been travelling with the other man, Mr Hanson. The Appellant replied "Yes". The officer then said to the Appellant "But you told me you were on your own?". The Appellant replied, "I thought you meant 'did I travel here on my own?', I came in my car on my own".

  4. The Appellant told the officer that he had picked up his ticket on the way out. He told the officer that he had bought tobacco products, Lambert and Butler cigarettes and some hand rolling tobacco. The officer searched his bag and found 10,000 cigarettes and 6 kilograms of hand rolling tobacco, together with a pair of shoes and a few shirts and trousers. The Appellant told the officer that he had travelled out of the United Kingdom on 5th January, three days previously, on a package holiday where he had had accommodation and not just a flight. He told the officer that he had never been stopped by Customs before. He told the officer that he had gone out just for cigarettes. He told the officer that he smoked Lambert and Butler cigarettes and they would last a year. He said that he smoked one to two sleeves a week. He produced the receipts for his purchases. He agreed to stay for an interview.

  5. At his interview, the Appellant told the officer that the cigarettes belonged to him. He had purchased the goods in Magaluf, Majorca at a tobacconists. They cost in total £1,732 euros, equating to roughly £1,200. He said that he had personally paid for them in cash and had taken the cash out with him. He had taken out £1,500 cash with him, together with his visa card. He still had about 50 euros left and had not used his visa card whilst he was away. The Appellant told the officer that his occupation was as a property developer and he rented houses out. He did not build properties but rented them out and owned the houses. He stated that four of the houses were owned by himself and his wife, two of which were in the name of his wife. He estimated that his income from the three properties let out was £600 to £800 per month. They lived in the fourth property. His other source of income was a monthly pension of £160, together with interest from his savings. He told the officer that he had £120,000 savings from the proceeds of downsizing his house when he retired.

  6. The Appellant told the officer that he was going to give some of the cigarettes away to his wife. The tobacco products were for himself and his wife to enjoy. He stated that he smoked about 60 a day and maybe more at the weekends and his wife smoked a similar amount. He was not sure how long the tobacco products would last him. The officer put it to him that he had told the officer earlier that they would last 12 months. The Appellant replied that that was not something he thought about. The Appellant told the officer that he had previously last travelled abroad about two months previously when he took his wife to the Algarve. He did not bring any cigarettes back then because he did not have any money or his visa card. On that occasion, he had only had £300 and his switch card and he had telephoned his bank to sort some more money out but they could not do so. He accordingly explained that he had not brought back any cigarettes to the United Kingdom with him when he and his wife had been to the Algarve, although the officer commented that it was very unusual that a heavy smoker did not bring any cigarettes back with him on that occasion. He told the officer that in the previous 12 months, he had been abroad three times, including the present trip.

  7. The Appellant told the officer that he had decided to go on the present trip at the last minute on 31 December and it had cost him £99. He said that the other man was a relative. He explained that he had initially told the officer that he had been travelling on his own because he had thought that the officer had meant whether he had come to the airport with the other man. He explained that he had come on his own and that the other man's son brought the other man. He said that there was nothing funny going on. The Appellant told the officer that he had not seen Customs Notice One before and was not aware of the EU guidelines. He said that he thought that he could bring back what he wanted. He knew it was an offence to sell excise goods without first paying the duty.

  8. The officer asked the Appellant if the Appellant and Mr Hanson were both travelling back together. The Appellant replied "No, we live in different towns".

  9. The Appellant stated that he intended to store the cigarettes in his bedroom at home. He had downsized his property just over two years previously and had been in his present house for two years. When he sold his previous house, he had sold it for £185,000. He said that he could provide proof that he had money in his building society as he had a passbook and would produce this if the officer wished. The officer commented that the officer thought it strange that he was stating that he had so much cash in his account and yet he had stated that he did not have any money when he went to the Algarve two months previously. The Appellant replied that he did have money in his account on that occasion, about £5,000 but he did not have the right card. He told the officer that his wife did not work, having retired three years ago. She did not yet have a pension. Like the Appellant, she lived off the rents and had some money from when she was made redundant a few years previously. He stated that he had no mortgage and did not owe any money.

  10. The Appellant told the officer that his wife rolled the cigarettes and smoked most of the hand rolling tobacco. He said that he smoked cigarettes but may have a rolled cigarette on an evening. He said that he had never tried to roll cigarettes but that his wife rolled them. He said that his wife purchased cigarettes normally in the United Kingdom when she did her weekly shopping. She normally bought sleeves as they were cheaper. He thought that sleeves cost about £41.00, but commented that he did not buy them because his wife bought them when doing shopping at Morrisons. He thought that a packet of 20 cigarettes when purchased in the United Kingdom, would cost four pounds odd. He said that he did not buy them singly but usually obtained them from the supermarket. He thought that hand rolling tobacco in the United Kingdom would cost £9 for a 50 gram pouch. He confirmed that two months previously when he had been in Portugal, he had not tried to get money sent through the bank to purchase cigarettes and had not brought back cigarettes with him.

  11. The officer was not satisfied that the goods were for Appellant's own personal use and seized them. The officer noted the reasons for the seizure, namely that the Appellant had disassociated himself from his travelling companion, that the consumption rate was not believable as lasting 12 months if both the Appellant and his wife smoked 60 a day, the officer did not believe that he had £120,000 in the bank and had not bought cigarettes from Portugal previously. The officer also noted as a reason for the seizure that both the Appellant and his co-traveller had cleared Customs control separately and the officer considered that this was done so that they could get half of the cigarettes through. The officer thought it not believable that his wife would sit and roll all the hand rolling tobacco for them both. The Appellant then stated to the officer that he had been on holiday as well as to buy cigarettes.

  12. The officer then handed to the Appellant a seizure information notice together with a warning letter and a Notice 12 A.

  13. On 8 January 2004, the Appellant wrote to the Commissioners requesting that the Commissioners reconsider the seizure and return his goods to him. In the letter, he considered that the goods had been taken from him unlawfully and submitted that there was no legal limit to the amount of cigarettes that a passenger could bring from an EU country as long as the goods were for personal use and for his personal consumption. The Commissioners considered that he was requesting restoration of the goods only. On 4 February 2004, the officer, Mrs Crowney, replied to the Appellant that the goods had become liable to forfeiture and had been seized. She stated that it was the Commissioners' general policy that excise goods are not restored. However, she stated that each case was examined on its merits to determine whether or not restoration may be exceptionally offered. The officer stated that she found no exceptional circumstances that would justify a departure from the current policy. She confirmed the goods on this occasion were not offered for restoration for the reasons that he had dissociated himself from his travelling companion, that his consumption rate was not believable, that it was unbelievable that his wife would roll the hand rolling tobacco for both of them, and that it was unbelievable that he stated that he had £120,000 in the bank and yet, being such a heavy smoker, did not bring cigarettes back with him on his previous trip to Algarve.

  14. The Appellant had, prior to the letter from the officer, filled in, completed and sent to the Commissioners a form of printed letter indicating that he was requesting restoration of the seized items because he considered that they were unlawfully taken without a reasonable explanation. He had sent a copy of his receipt for having paid for the goods in Majorca.

  15. On 10 March 2004, the Appellant wrote to the Commissioners asking for a review of the decision.

  16. On 24 March 2004, a review officer of the Commissioners, Mrs Maureen Crook, wrote to the Appellant with her review decision. The officer notified the Appellant that she had carried out her review and concluded that the excise goods should not be restored to him. In the letter, in summary form, she set out the answers given by the Appellant to the officer of the Commissioners when he had been stopped at Manchester Airport. The officer set out in the letter the legislation applicable to the review, and the policy of the Commissioners. She stated that it was the general policy of the Commissioners that seized excise goods were not restored. However, each case was examined on its merits to determine whether or not restoration may be exceptionally offered. She pointed out that the officer who had stopped the Appellant had believed the goods to be of a commercial nature and they were seized for that reason. She pointed out that the Appellant had chosen not to appeal against the legality of the seizure and the goods were therefore condemned as forfeit to the Crown by passage of time. The Commissioners' policy in regard to restoration of commercial excise goods was that these goods should only be restored in exceptional circumstances.

  17. The review officer concluded that the Appellant had not provided any exceptional circumstances that would warrant a deviation from the policy of non- restoration, and therefore upheld the decision of the original officer, and concluded that the goods would not be restored.

  18. The review officer then stated in the review letter, "Whilst not appropriate to review on restoration of goods, I have also noted the following". The officer then set out four inconsistencies that had been revealed in the Appellant's answers to questions put to him by the initial officer when stopped.

  19. The Appellant had initially stated that he was travelling alone, but when the officer challenged this statement, he amended it to admit that he was travelling with Mr Hanson. He had sought to explain that he thought that the officer was asking how he had travelled to the airport. However, the officer's question to him was "Are you travelling on your own today?" to which the Appellant had replied "Yes". The officer had considered this to be an attempt to disassociate himself from his co-traveller.

  20. The Appellant had told the officer that he thought that the cigarettes would last for 12 months. However, at his stated consumption rate of 60 cigarettes per day, 10,000 cigarettes would only last him for 166 days.

  21. He had stated that he had travelled abroad twice before this journey but did not bring back excise goods on the last occasion when he was with his wife. The officer considered it would be very unusual for two heavy smokers to not bring some cigarettes back with them, especially as on his first journey, he would have been aware of the savings that could be made.

  22. Further, there were some inconsistencies between the answers he gave to the officer in interview and the answers given by his travelling companion. He had stated that the trip was only planned at the last minute. Mr Hanson had stated to an officer that the trip was planned and that they went every year. Mr Hanson had also told an officer that Mr Hanson was travelling to the house of the Appellant with the Appellant in the Appellant's car and that Mr Hanson's son would pick Mr Hanson up from there. The Appellant, however, had told the officer that they would not be travelling back together as they lived in different areas.

  23. The officer then added, "As I have stated above, these points do not form part of my review as they refer to the officer's reasons for seizure of the goods. I have however endeavoured to clarify these points as you have stated in your letter of 8 January 2004, that you had not been given a reasonable explanation of why the goods were seized".

  24. The officer concluded that the officer had taken all relevant material into consideration and for the reasons previously set out, exercised her option to confirm the contested decision not to offer restoration of the excise goods.

  25. The Appellant appealed by Notice of Appeal dated 7 April 2004, stating as the grounds for his appeal, that the tobacco products were for his own and his wife's personal use and not for commercial purpose.

  26. On 15 June 2004, the Respondents served witness statements on the Appellant, containing a statement from the initial officer, Mrs Lisa Crowney, setting out her notes of the questions and answers put to the Appellant when the Appellant had been stopped on 8 January 2004, and a statement from the review officer, Mrs Maureen Crook, containing copies of the officer's record of interview with the Appellant, the documentation and correspondence, and the review decision. The Appellant did not object to the witness statements, and these statements were accepted as the evidence of the Commissioners at the hearing of the appeal.

  27. The Appellant appeared at the hearing of this appeal and represented himself.

    28. Evidence of Appellant at hearing
  28. The Appellant, Mr Leslie Baldwin, said in evidence at the hearing that in early January 2004, he saw on his television a teletext advertising a very cheap holiday in Majorca, which included three nights half board and travel. He considered this to be a bargain. He telephoned his wife's brother, Mr James Hanson, and asked Mr Hanson if he wished to come with the Appellant. The Appellant said that the Appellant's wife had been ill with flu at the time.

  29. The Appellant and his brother-in-law agreed to go on the holiday together and the tickets were booked. Because of the short notice, they had to pick up their tickets at Manchester Airport. Mr Hanson lived in Keighley, West Yorkshire and they did not travel to Manchester Airport together in the same vehicle. He met Mr Hanson at the check-in at Manchester Airport.

  30. The Appellant described how he and Mr Hanson travelled on holiday together to Majorca. The Appellant had only taken one suitcase as the weight limit on the flight was 20 kilograms. He said that whilst on holiday he bought, in Majorca, as much cigarettes and tobacco as he could to fill his bag. He said that he bought 50 packets of Lambert and Butler cigarettes and 6 kilograms of Golden Virginia rolling tobacco for which he paid about £1,700 euros, about £1,200. He said that he bought these goods in Majorca at a government run tobacco shop where the price was the cheapest. He said that he thought that his brother-in-law had bought the same amount but he was not sure as his brother-in-law had bought his goods on a different day to the Appellant, while the Appellant was playing golf. The Appellant described that his brother-in-law was disabled and did not now play golf and for one of the days of the holiday, they had spent the time apart.

  31. The Appellant described that on the return journey to the United Kingdom, they had waited for a long time in Manchester for the luggage to arrive on the carousel. They had waited about 45 minutes. The Appellant said that his bag came off first, before that of his brother-in-law and he said goodbye to his brother-in-law at the carousel and set off to go home as the Appellant had his car in the airport car park, while his brother-in-law was being picked up in his own car by his son.

  32. The Appellant stated that when the Appellant was stopped by the officer, his brother-in-law was still waiting for his luggage at the carousel.

  33. The Appellant stated that the interviews with the officer took about three and a half hours and that his brother-in-law was interviewed separately. He said that he had read the notes of the officer and did not dispute the officer's notes of the interview. However, he stated that at on some points he had been quizzed by the officer for about 20 minutes in an arrogant manner and the officer had told him that she had believed that he was lying when he told her the amount of his savings. He said that he had answered the officer's questions freely and he was very upset by the attitude of the officer.

  34. The Appellant produced at the hearing a photostat copy of a page from his building society passbook. This was an account at Skipton Building Society in the joint names of the Appellant and his wife. This showed that up to 8 January 2004, the account had a credit of £129,061.46. There had then been a withdrawal on 9 January 2004 of £55,017. This had left the account in credit in the sum of over £74,000. The Appellant explained that he had withdrawn the £55,017 from the account on 9 January 2004 to move the savings to another account at Halifax, which had a better rate of interest. It was his policy to invest in different accounts to obtain the best results.

  35. The Appellant said that he smoked Lambert and Butler cigarettes, that his wife smoked Golden Virginia smoking tobacco, and that he smoked roll ups in the evenings as well as cigarettes. He said that he smoked more at the weekends than during the week. He estimated that he smoked about one to one and a half sleeves a week. A sleeve consisted of about 200 cigarettes. He said that if he socialised, he smoked more but if he stayed in, he smoked less. He said that rolled cigarettes were cheaper as more roll ups can be obtained from the tobacco than the cigarettes. He stated that on an average day, he smoked about 40 to 60 cigarettes, which was a combination of both cigarettes and smoking tobacco cigarettes. He said that his wife did the rolling. He did not like smoking roll ups when out socialising.

  36. He said that he was not able to give the officer an exact estimate of how many roll ups he could have obtained from 6 kilograms of tobacco as he did not know how many cigarettes could be rolled from each kilogram. He said that he thought that his wife smoked about 30 roll ups a day, but that his wife when rolling up for herself, rolled them at a different size.

  37. The Appellant described that in January 2003, he had travelled with his wife for a holiday abroad when he had brought back about 30 sleeves of cigarettes, about 6 kilograms of rolling tobacco. On that occasion, they had not been stopped. They had had a full suitcase and could not pack more tobacco goods. His wife, on that occasion, had brought a lot of clothing with her.

  38. He also said that two months prior to January 2004, he had been on holiday to Algarve with his wife and had intended on that occasion to bring back cigarettes and tobacco. On the last day of that holiday, he had attempted to obtain cash at a cash point. Although he had had a lot of money in his savings account in England, the cash machine would not accept the cards of himself and his wife. He had to go into the bank and they had explained to him that the only way that he could get money in cash was to telephone his bank in England and they would make the arrangements but it would take time. As this was the last day of that holiday, he could not make the arrangements before he was due to return to the United Kingdom. He therefore explained that he was not able to buy tobacco products on that occasion, even though he had £5,000 credit in his account. It was for that reason that in January 2004, he took cash with him in order to purchase his tobacco goods.

  39. The Appellant stated that the purpose of the trip in January 2004 was one half to have a holiday and the other half to buy tobacco products. Accordingly, his purpose was to have a mini break, and buy cigarettes and tobacco.

  40. The Appellant estimated that he smoked about 200 to 300 a week but did not know how long the tobacco would have lasted him. He said that the officer went on and on asking him about how long the tobacco would have lasted him and he had told her three times that he did not know. At the end, he said that it would have lasted about one year, but that was a rough guess and it was probably nearer six months to one year. He added that it was a long interview and the officer had been very aggressive, although her notes were an accurate record of his answers.

  41. The Appellant said that he could not remember having been given a Notice 12A by the officer, although the officer had ticked on the seizure information notice that a Notice 12A had been issued. The Appellant said that the officer gave him a pamphlet, and he could not remember if the pamphlet contained the same information as on a Notice 12A. His son had given him the form to request the restoration of the items.

  42. The Appellant said that he had travelled previously abroad with Mr Hanson, about three times over the past five years, about once every 18 months. Before Mr Hanson had become injured, they used to play golf together on these holidays but Mr Hanson had fallen off some scaffolding and broken his hip and was no longer able to play golf.

  43. Mr Shields put to the Appellant that Mr Hanson had told an officer at the Airport that the Appellant was going to give Mr Hanson a lift back. The Appellant denied that that was correct, stating that Mr Hanson's son was picking up Mr Hanson from the Airport. Mr Shields suggested that the Appellant had been attempting to mislead the officer when he told the officer that he had been travelling alone. The Appellant denied that he had attempted to mislead the officer. He said he had been alone in the sense that he was travelling back in his car alone.

  44. Mr Shields also queried why the Appellant at the hearing had stated that his wife smoked about 20 a day, whereas he had told the officer that his wife smoked about 60 a day. The Appellant replied that he was not making exact calculations. He said that his wife smoked less than he did and she could roll tobacco into cigarettes thinly, obtaining 60 rolled cigarettes, when thin, which was the equivalent of 20 ordinary cigarettes. He also said that the figure of 60 a day that he said he smoked, was a figure that had been put to him by the officer as her suggestion to which he had replied in the affirmative. He said that he did not know exactly how many cigarettes a day he smoked. He said that his wife put tips into the rolled cigarettes so that there would be less tobacco in a rolled cigarette. He thought that the goods that he was bringing back would have lasted about 6 to 12 months.

  45. The Appellant explained that on the previous holiday in the Algarve, when he had attempted to get cash from the cash machine, the bank had told him that the Yorkshire Bank mini card would not work there. He had tried to get the cash to purchase the tobacco products on that earlier occasion on the last day of his holiday so that there would be no danger of the goods being stolen from his room at the hotel.

    46. Submissions by Representatives of Respondents
  46. Mr Shields submitted on behalf of the Respondents that the appeal should be dismissed. He submitted that the decision of the Court of Appeal in the case of Barry Gascoyne v H M Customs and Excise [2004] EWCA Civ 1162 was relevant. He submitted that the Court of Appeal had, in that decision, confirmed the decision of the Court in another case, Gora v Customs and Excise Commissioners [2004] QB93, that except in very limited circumstances, where a person has not caused the Commissioners to bring condemnation proceedings, goods are deemed forfeit by the passage of time and thereby it is deemed that the goods had been imported for a commercial purpose. Mr Shields submitted that the tribunal did not have the jurisdiction to decide on the fact whether the Commissioners' decision not to restore goods was unreasonable. He submitted that following the Court of Appeal decision in Gascoyne, only a small window had been opened whereby the Tribunal could look at the legality of seizure in limited circumstances.

  47. Mr Shields submitted that in the Appellant's case, there was nothing in this appeal, which would give the Tribunal jurisdiction to open the legality of the seizure. He submitted that the deeming provisions must apply and that the jurisdiction of the Tribunal was only to decide what was the Commissioners' policy with regard to goods validly seized, and whether the Commissioners' decision not to restore was reasonable in line with that policy. He submitted that an Appellant would have to establish that there were exceptional circumstances to justify a departure from that policy.

  48. Mr Shields submitted that in the case of Mr Baldwin, he had been handed a Notice 12A by the officer at the Airport informing him of his right to challenge the seizure and forfeiture of his goods in a Magistrates' Court. Mr Baldwin had done nothing about that. Mr Shields submitted that Mr Baldwin could not re-open the legality of the seizure. He submitted that therefore it was appropriate for the deeming provisions to apply and he submitted that it was not unfair to the Appellant.

  49. Mr Shields then submitted that if the Tribunal did not accept his analysis of the Gascoyne decision, he took the view that it had been appropriate for the officer to have taken the view that the goods had been imported for commercial purposes. He submitted that if the Appellant was not importing for commercial purposes, he would hardly have told the officer that he had been travelling alone and thereby denying that he had been travelling with Mr Hanson. His explanation as to why he said that he had been travelling alone was not reasonable. The Appellant had varied his rate of consumption of tobacco, having told the officer that he smoked 60 a day when stopped, but at the hearing he altered that smoking capacity. He also gave different accounts, both when stopped and at the hearing, of how many cigarettes a day his wife smoked. He further gave different accounts as to how long the goods would have lasted him. Mr Shields submitted that the Appellant's answers had not been frank. The officer had been correct to conclude that this was a commercial importation and not for his own use.

  50. Mr Shields accordingly submitted that the importation was either deemed to be commercial or alternatively, if it was open to the Tribunal to make a finding, the Tribunal should make a finding that it was a commercial importation. He submitted that the appeal should be dismissed but that the Commissioners were not seeking an order for costs.

  51. The Appellant submitted that it was not a commercial importation and he was importing the goods for the personal use of himself and his wife, not for profit or resale. He reiterated that he had told the officer that he was travelling alone because, in his own mind, Mr Hanson was in a different part of the Airport, some distance away and Mr Hanson was not travelling back with the Appellant in the same vehicle when they left the Airport. He had never had any problems with Customs before. He was only bringing back a small amount of tobacco products for himself and his wife. There was a weight limit for his luggage, which restricted the weight of goods he could bring back. It was therefore not relevant as to how long the goods were to last him.

    52. Findings of Fact and Conclusions
  52. We have considered all the evidence in this appeal and the principles of law involved.

  53. We make the following findings of fact. We find that on 8 January 2004, the Appellant was returning to the United Kingdom by air following a three-day holiday in Majorca. He had gone on holiday with his brother-in-law, Mr Hanson. On that holiday, the Appellant had purchased, in Majorca, 10,000 cigarettes and 6 kilograms of tobacco, which cost him about £1,200 equivalent in euros. He paid for the goods in cash with cash that he had brought with him on holiday. He returned to the United Kingdom by air with the tobacco products in his bag. He collected his bag at the carousel and was stopped by an officer of the Commissioners when proceeding through the Customs exit. When questioned by an officer, he initially said that he had been travelling on his own, but on further questioning, admitted that he had been travelling with Mr Hanson. He explained to the officer that he had thought that the officer, when putting the initial question, meant if he had travelled on his own, and he had answered on the basis that he had come in his own car on his own. During the interview, the Appellant told the officer that he had savings of £120,000. He also answered questions from the officer as to the smoking habits of himself and his wife, and his previous travels. He had travelled abroad a year previously, and two months previously he had been with his wife to the Algarve. He explained to the officer that on that holiday he had intended to bring back tobacco products with him but was not able to do so as he was not able to obtain cash from a cash machine in the Algarve and had travelled back without making the purchases of tobacco products. He told the officer that it was his wife who did the rolling of the hand rolling tobacco.

  54. The officer was not satisfied that the goods were for the own personal use of the Appellant and his wife. He had disassociated himself from his travelling companion, the officer did not believe the consumption rate given or that his wife would roll the tobacco for him. The officer did not believe that he had £120,000 savings and had not bought cigarettes from the Algarve two months previously. The officer took an adverse view as to why the Appellant and Mr Hanson had cleared Customs control separately.

  55. The review officer had confirmed the officer's decision not to restore the goods to the Appellant. The reasons given in the review letter are similar to those given by the officer. The review officer also added that Mr Hanson had told an officer when stopped that Mr Hanson was travelling to the house of the Appellant with the Appellant in his car and that Mr Hanson's son was intending to pick up Mr Hanson from the Appellant's house, and accordingly, that Mr Hanson had stated that they were travelling back together.

  56. We have considered the evidence in this appeal as a whole. On the one hand, we find that we are not satisfied that the Appellant gave a satisfactory or reasonable explanation as to why he told the officer that he was travelling alone. It is clear that he was returning to the United Kingdom from a holiday in Majorca, which he had taken together with his brother-in-law, Mr Hanson. In those circumstances, it was to be expected that the Appellant would have told the officer that he had been travelling with Mr Hanson. They may have taken their respective items of luggage off the carousel at the Airport at different times, and passed through the Customs exit at different times, but that did not give good reason for the Appellant to tell the officer that he was travelling alone. The Appellant's explanation that he had replied in this way because they had travelled to the Airport in different cars and were intending to return in different cars was, in our view, not a plausible explanation. Indeed, Mr Hanson, told the officer who stopped him, that he was to travel from the Airport to the Appellant's house in the Appellant's car where he would be picked up by his own son.

  57. We find, however, that it was only in that one respect that we found the Appellant not credible. On all other aspects in this appeal, we found the Appellant to be a credible witness and we believed his evidence on all those other matters.

  58. We find that the Appellant is retired and owns four houses. We are satisfied that at the material time, he had savings of over £120,000. We find that the Appellant is a smoker and further that his wife is a smoker. We find that the Appellant purchased the 10,000 cigarettes and 6 kilograms of tobacco in Majorca and was bringing those items back to the United Kingdom for the personal use of himself and his wife. We find that he is not a commercial smuggler and that he was not intending to import the goods for resale or for profit. The Appellant has provided evidence, which is satisfactory, as to the extent of his savings.

  59. We find that the Appellant has given a satisfactory explanation as to the answers he gave to the officer with regard to the consumption of tobacco and cigarettes by himself and his wife. The interview notes show that the interviews were conducted from 1.55 pm to 4.20 pm. The Appellant had satisfactorily explained that during that long interview he attempted to give a proper explanation to the officer of the smoking habits of himself and his wife. He was unable to give an exact consumption rate as consumption varied when he went out socially and when he stayed in, and whether he was smoking commercial cigarettes or cigarettes that had been rolled by his wife. We find that there is nothing in his answers to the officer or in his evidence at the hearing which leads us to the view that his varying answers as to the consumption rate could lead to a conclusion that this was a commercial importation. We believe his evidence that his wife rolls the tobacco. We believe his evidence that he had not purchased cigarettes in the Algarve when he and his wife had been on holiday there two months previously. We accept his explanation as to why he was unable to buy cigarettes on that occasion because he had not brought sufficient cash with him and his mini card from his building society would not work at the cash point in the Algarve and there was no time to obtain monies from England when he was purchasing on the last day of his holiday. The Appellant has no history of commercial importation. There was no evidence that he intended to sell any of the goods. He had personally financed the purchase of the goods and had the means to do so. The quantity of the goods, although above the guidelines, was not highly excessive, and the amount was not so large as to indicate a commercial purpose. He had not attempted to conceal the goods.

  60. We have conducted a balancing exercise in relation to the evidence in this appeal and have concluded that the evidence significantly points to a conclusion that the Appellant was not intending to import the goods for a commercial purpose, and that he was intending to import the goods for the personal use of himself and his wife.

  61. We find that the officer of the Commissioners who seized the goods did not take into account all the relevant circumstances in concluding that the goods should not be restored to the Appellant. We find that the officer placed too much emphasis on the information she had originally been given by the Appellant that he had been travelling alone. She did not sufficiently take into account the financial situation of the Appellant and his considerable savings of £120,000. We find that the officer's conclusions were not justified in the light of all the information she was given by the Appellant. We find that the Commissioners did not act reasonably in concluding that there were no exceptional circumstances which would justify the restoration of the goods to the Appellant. We find that the review officer did not act reasonably in reaching that review decision. She did not satisfactorily take into account all the circumstances. We find that no reasonable body of Commissioners should or could have come to the conclusions which the original officer or the review officer reached. We find that the refusal to return the goods to the Appellant was not proportionate and that it was not a reasonable exercise of the policy of the Commissioners. We find that the refusal was not a reasonable exercise by the Commissioners of their discretion. We find that the Commissioners' decisions were not reasonably arrived at, that they have acted in a way that no reasonable Commissioners could have acted, they have taken into account irrelevant matters and disregarded matters to which they should have given weight.

  62. The question then arises as to what legal consequences should ensue from our findings.

  63. By the legislation, duty is chargeable when goods are held for a commercial purpose. The goods are rendered liable to forfeiture under the Customs and Excise Management Act 1979. The Appellant made no challenge as to the legality of the seizure by way of condemnation proceedings and the goods 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.

  64. The representative of the Commissioners has cited the Court of Appeal decision in the Gascoyne appeal as authority for the view that this Tribunal has no jurisdiction to allow the appeal where there has been a deemed forfeiture and where the Appellant has not instituted proceedings in the Magistrates Court or caused the Commissioners to issue High Court proceedings in relation to the seizure.

  65. In this appeal, the Appellant was not legally represented and did not seek legal advice. The Commissioners' documents indicate that he was given a Notice 12A when his goods were seized. The Appellant, however, did not appreciate the full nature of his remedies, and wrote a letter to the Commissioners asking for the decision to be reviewed and the goods restored to him. We find that the Appellant did not have an appreciation of the significance of his adopting that path and not making application in the Magistrates Court.

  66. In these circumstances, and where we have made our finding that the Commissioners have acted unreasonably, and where we have found that the Appellant was importing the goods for the sole use of himself and his wife and not for commercial purposes, it would be unjust, unfair and a breach of the Appellant's legal rights, to bar the Appellant from, and to shut him out from the only Tribunal before which he has appeared to ventilate his rights. We take the view that it would not be an abuse of process to allow the Appellant to ventilate his claims in this appeal.

  67. Having considered the decision of the Court of Appeal in the Gascoyne appeal as a whole, we find that in the case of Mr Baldwin, the deeming provisions do not prevent us from making our findings of fact in this appeal, and from allowing this appeal and making the appropriate directions to the Commissioners.

  68. In all the circumstances of this appeal accordingly, we find that it is proper to consider the Appellant's circumstances as exceptional for the reasons which we have previously set out.

  69. In view of our findings that on the evidence, the Appellant is not a commercial importer, that the goods were being imported for the personal use of himself and his wife and that the decisions of the Commissioners were not decisions that a reasonable panel of Commissioners could or should have arrived at, we allow the Appellant's appeal.

  70. This Tribunal hereby directs under Section 16(4)(b) of the Finance Act 1994 that the Commissioners do conduct a further review of the decision to refuse restoration of the goods to the Appellant and serve the same on both the Appellant and the Tribunal within 30 days of the release of this direction. We direct that the review be conducted by an officer not previously involved and on the basis of our finding that the goods were held for the Appellant's own use. The officer shall consider whether restoration should be made in the form of compensation and if so, shall specify the amount of compensation and the basis of calculation. We direct that the review officer shall take account of any further material or representations made by the Appellant within 14 days and that, if dissatisfied with the review, the Appellant shall have a further right of appeal to the Tribunal.

  71. In all the circumstances, we make no order as to costs.

    72. I E VELLINS
    CHAIRMAN
    Release Date: 11 November 2004

    MAN/2004/8052

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