United Kingdom VAT & Duties Tribunals (Excise) Decisions

E00829

EXCISE DUTY — excise goods and car carrying them seized — two travellers in car — review decision to restore car on payment of duty evaded reasonable — appeal dismissed.

MANCHESTER TRIBUNAL CENTRE

CHRISTOPHER BOWERS Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mrs E Gilliland (Chairman)

Mrs M Kostick (Member)

Sitting in public in Manchester on 16 September 2004

The Appellant in person

Mr Ian Speed of counsel, instructed by the Solictor for HM Customs and Excise for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION
1. The appeal before the tribunal is that of Christopher Bowers (the Appellant) challenging the decision of the Commissioners on a re-review on 9 July 2003 not to restore to the Appellant excise goods and to offer conditional restoration only of the car in which these goods were being carried, all seized at Eastern Docks Dover on 19 February 2001. The matter first came before this tribunal on 16 February 2004 but was adjourned at an early stage so that officers of the Commissioners whose witness statements were objected to by the Appellant could attend. As before the Appellant is presenting his own case and he has given evidence on oath. Counsel for the Commissioners Ian Speed is replacing the Commissioners' previous representative. He has called two witnesses, first Alec James Esposito the officer who stopped the Appellant and his travelling companion, interviewed the Appellant and seized the goods and the vehicle; and secondly David Arthur Leavesley the review officer who made the contested decision. The seized vehicle was a white Citroen BX registration number J248 KLY (the car), which belonged to the Appellant. He has placed its then value at £1700. In the car with him was Sharon Durkan who has not attended today's hearing. The total amount of goods seized comprised 13 kilos of hand rolling tobacco; 1 bottle of whisky; and 55 cigarillos (the goods). The condition imposed by the review officer for restoration of the car was a payment equal to the duty not paid on the goods being £1249.77.
2. The tribunal has before it a copy of the manuscript record made by Officer Esposito as well as the oral testimony of the Appellant and the officer with regard to both the interview and the record. The copy of the manuscript record shows that at the end of the question and answer section there is written (and it has been established to our satisfaction that this in the handwriting of the Appellant) the following: " I agree the above is a near on true account.19. Feb. 2000 (sic) 17.35." The officer's deliberation and his reasons for seizure are set out below that. These are with respect to the Appellant that the quantity exceeded the (then) minimum indicative levels, lack of funds for the purchase and that the Appellant was a regular traveller. Similar reasons relating to Ms. Durkan were also given (and as requested by her the officer had endorsed her disagreement with two of these reasons). There is also in the Commissioners' bundle a copy of a manuscript record of another officer in interview with Ms. Durkan. That officer has not attended the hearing though Mr. Esposito has told us in his evidence that as was usual in this kind of case he would have liaised with her at the time of the interviews and Mr. Leavesley has said in examination-in-chief that he had her evidence before him when making his decision.
3. In presenting his case and giving his evidence the Appellant has objected to the items, which Ms. Durkan had said she had bought (200 pouches of tobacco), being counted in with his own. He has said that what she imported should be treated as quite separate from his and that he was not responsible for her goods. What he had brought in was 60 pouches of tobacco as he had told the interviewing officer. None of the goods in the car had been concealed. The goods were for personal use. He has told us also that Ms. Durkan does not intend to contest the review decision. At the first hearing the Appellant said in evidence that whilst the record of his general statement to the interviewing officer was more or less correct he sought to draw attention to two matters; first when Counsel for the Commissioners pointed out that the Appellant had in fact signed it, he responded that he had been shown the record only one page at a time and that at a time when all he wanted to do was go; and secondly what he claims is an inaccuracy in what was written down as to goods he had imported on a previous occasion. He has raised that point again today. The Appellant had been asked by Mr. Esposito when he had been stopped when he had last been abroad and what he had purchased. The Appellant's initial reply as recorded was that he had been abroad about a week before but only to France to buy drink for his daughter's 18^th birthday party. He had not then bought tobacco. He had last been abroad to buy tobacco about six months previously when he had bought about a box and a half. He was then formally interviewed and again asked when was the last time he had travelled abroad to buy tobacco and he is shown to have said: "Well, two weeks ago - we had tobacco - we were stopped, but there was no problem". It is recorded that when asked how much he had personally bought then his reply was: "20 pouches, 30 pouches maximum". He had six pouches of it left. He had not bought more as he did not have the funds. In cross-examination today the Appellant has insisted that he did not say "20 pouches of tobacco" but that the reference should be to "20 or 30 cases of alcohol" or " beer or wine". Further, where it was recorded that he and Ms. Durkan had gone to France that he would not have bought tobacco there when Belgium was nearby and cheaper. Mr. Esposito has been sure in response to questions from Counsel for the Commissioners that the reference was to "pouches" and pointed out that the Appellant's reply to the subsequent question was "Six pouches" which would not make sense in the context of alcohol.
4. We note that no explanation has been offered by the Appellant as to why he would have made two trips for alcohol within a week of each other particularly as he had said earlier that it was a long journey from his home to the continent. Mr. Esposito has told the tribunal that he would have had before him information about when travellers had been stopped previously by Customs as that was on record but that there was nothing about the Appellant having been stopped a fortnight before. It has been submitted also by the Appellant that on a previous occasion when he had been stopped he had been told not to come back with anything further for six months and that he had kept strictly to this. He had not bought tobacco when on the trip for wine for his daughter's party as that was still within the six month period and the tobacco would have been confiscated. When putting questions to Mr. Esposito in cross-examination it was the Appellant himself who said that he (the Appellant) had put in the lines at the end of each sentence of the manuscript record although the officer could not remember that. We can only presume that the intention was to ensure that nothing would be put in later. That in our view is the action of someone fully aware of the importance of the statement being written out.
5. In his evidence to the tribunal the review officer has confirmed that he had recognised that time had moved on since the seizure and that there had been legislative and policy changes and the decisions of the Courts in Lindsay and Hoverspeed to be taken into account. Indeed the review that he had undertaken had arisen from an application from the Commissioners to the tribunal for a direction for another review to be conducted because of the decision in Lindsay. (John Richard Lindsay and Commissioners of Customs and Excise [2002] EWCA Civ 267). Mr. Leavesley in the Consideration section of the letter he issued on 9 July 2003 referred to the frequency of travel admitted to by the Appellant namely three trips in three weeks: one a fortnight before the trip of 19 February 2001 (when he had 20 to 30 pouches of tobacco); the trip of 19 February (he had acknowledged 60 pouches as his own); and the journey to the continent one week before for drinks for the party. By at first suggesting to the officer when stopped that he had not purchased tobacco for six months but later correcting that, the review officer concluded that the Appellant was seeking to mask the frequency of his trips. Further the Appellant had not been stopped as he had claimed two weeks earlier and thus there was no record that he had brought in only 20 to 30 pouches of tobacco then. Mr. Leavesley had looked also at affordability and compared the cost of the goods as against the means of the Appellant and Ms. Durkan and particularly as to how they had managed to pay for the goods having declared that shortly before they had no funds with which to buy goods. He had found discrepancies in their statements as to which countries they had travelled to and when. The Appellant had said that they had travelled to France for wines and spirits for the party but Ms. Durkan said that they had been to France and Holland. The officer's view was that there was no credibility in their statements and that the burden of proof as to commerciality which the Divisional Court in Hoverspeed (R (Hoverspeed Ltd.) v Customs and Excise Commissioners [2002] 3 CMLR 395) established fell on the Commissioners had been satisfied. The officer then looked at the changes in policy of the Commissioners post-Lindsay and post-Hoverspeed in the Court of Appeal. The policy on goods had not changed and goods would not be restored unless there were exceptional circumstances, which he had not found. He did accept that the current policy on vehicles required him to look at certain factors such as by how much the imports exceeded guidelines; whether this had been a first offence; whether there had been concealment or deceit; the value of the car and hardship. He had concluded that notwithstanding the commerciality of the imports he could apply that policy to allow the restoration of the car on payment of a fee, which was a sum equivalent to the duty evaded on the goods and in the instant case that amounted to £1249.77.
6. The role of the tribunal in this matter is supervisory only in that it is for us to consider whether the decision appealed against is one which the Commissioners could not reasonably have arrived at. In determining this we look at whether the review officer has taken into account all relevant matters and left out of consideration irrelevant ones. Whilst the goods and the car are legally forfeited in the instant case through passage of time there having been no condemnation proceedings we may nevertheless look at the factual background of the seizure in the considering the reasonableness of the decision. Having regard to the information available to him it is our judgment that the review officer was entitled to come to conclude as he did that the importation of the goods was not for own use. We find that there have been misleading inconsistencies in the evidence of the Appellant as to previous travel and we have identified discrepancies between his evidence and the statement of Ms. Durkan. Mr. Leavesley was sceptical as to how they could have financed their purchases and we do not consider that view unreasonable. As to the quantities involved both the Appellant and Ms. Durkan had at the time of seizure exceeded the mils. The current guideline for hand-rolling tobacco is 3 kgs which is the amount brought in by the Appellant though Ms. Durkan still exceeds that limit. Mr. Leavesley has not apportioned the total imports and we are satisfied with this. It is our opinion on the evidence that this was a joint enterprise organised by the Appellant and one of a series of such trips. We consider the goods to have been "mixed, packed, or found " together (s.141 CEMA 1979) and not readily divisible into the two separate holdings claimed. The decisions in Lindsay and Hoverspeed do require consideration to be given also to the issues of proportionality and to factors to be taken into account before a cross-border traveller is deprived of "the peaceful enjoyment of his possessions". (Article 1 First Protocol European Convention). Mr.Leavesley concluded properly in our view that the goods were not for personal use but were for potentially commercial purposes. The policy of the Commissioners permitted restoration of the car on condition that the Appellant paid the duty otherwise lost to the Exchequer. This is in our view legitimate and reasonable.
7. We dismiss the appeal.
8. The Commissioners have not sought costs and we make no direction as to costs.

E GILLILAND

CHAIRMAN
Release Date: 29 November 2004

MAN/03/8142