United Kingdom VAT & Duties Tribunals (Excise) Decisions

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Cite as: [2004] UKVAT(Excise) E00832, [2004] UKVAT(Excise) E832

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Power v Customs and Excise [2004] UKVAT(Excise) E00832 (08 December 2004)

E00832

EXCISE DUTY – restoration of car on payment of the duty on the excise goods – whether reasonable – yes – appeal dismissed

LONDON TRIBUNAL CENTRE

GARY POWER Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: DR JOHN F AVERY JONES CBE (Chairman)

PRAFUL DAVDA FCA

Sitting in public in London on 30 November 2004

The Appellant appeared in person

Edite Ligere, counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004

DECISION

Mr Gary Power appeals against a decision on review (the fourth such review) dated 14 January 2004 refusing to restore excise goods and agreeing to restore his car, or rather pay money in lieu as it had been disposed of, subject to deduction of the full amount of duty on the excise goods, £3,844.51. The Appellant appeared in person; Miss Edite Ligere appeared for the Commissioners.

The Appellant and the reviewing officer, Mr G.A Murray gave evidence. We find the following facts

(1) The Appellant was stopped at the UK Control Zone at Coquelles on 7 March 2001. He said that he had been to Calais and had purchased maybe one, two or three thousand cigarettes; the actual quantity was 3,600. In the boot of the car were 34 kilos of hand-rolling tobacco, 660 cigarillos and 9.75 litres of wine. The tobacco products had been purchased in Adinkerke, Belgium for £1,538.20; the duty on them was £3,844.51 and they had a retail cost in the UK of £5,440. The guide level amounts were then 1 kg of tobacco and 800 cigarettes; and from 1 December 2002 they are 3 kg of tobacco and 3,200 cigarettes.

(2) The goods were seized, as was his car, a Peugeot 40-6 registration P229 MLX on the grounds of exceeding the indicative levels, that he had been given money to purchase the goods, and he had failed to declare the tobacco.

(3) The Appellant smokes cigarettes. The tobacco was for friends and family who had paid him the cost. Statements from ten people who had provided funds for the purchase were in the hands of the reviewing officer, who accepted that they were true.

The Appellant contends that the decision on review was unfair in that he had to suffer the duty on goods that he did not have. He no longer contends for the restoration of the excise goods. He says that he was not given time to declare the tobacco which was in the boot and not hidden.

Miss Ligere contends that the decision was reasonable and proportionate. Mr Murray concluded that the policy in force at the time of the review should be applied, which is that in the case of excise goods to be sold on a not-for-profit basis on the first occasion the car would be restored on payment of 100 per cent of the duty on the excise goods. In reaching this conclusion he took into account the amount of the excise goods, more than 11 times the guide level for tobacco and slightly over for the cigarettes; that although the Commissioners had at the time thought that the burden of proof of showing that the goods were not for commercial use was on the Appellant, the quantity of goods was an item of evidence pointing to commercial use; that the Appellant's initial declaration, not referring to any tobacco was untrue; and that he accepted that the goods would be sold on a not-for-profit basis. He considered the Appellant's need to have a car because he worked at an industrial estate in Bow that was not served by public transport starting at 6.30 am, and in order to visit his daughter in Weston-super-Mare, but did not consider that these amounted to exceptional hardship justifying departure from the policy. The reason for charging the duty as a condition of restoration was that the goods were for commercial use (which includes sale at cost) and so were liable to duty.

The Tribunal's jurisdiction is contained in section 16 of the Finance Act 1994 which applies to matters contained in Schedule 5 including decisions on restoration. Section 16(4) provides that

"In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of an appeal tribunal on an appeal under this section shall be confined to a power, where the tribunal are satisfied that the Commissioners or other person making the decision could not reasonably have arrived at it, to do one or more of the following, that is to say—

(a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct;

(b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision;…."

Our task is therefore to consider whether Mr Murray's decision to restore the car (or to make a payment in lieu) on payment of 100 per cent of the duty, could reasonably have been arrived at. We consider that it is an entirely reasonable decision. The restoration is in accordance with the policy. He considered whether the circumstances justified departure from the policy and decided that they did not. Although there has been considerable delay caused by three previous reviews, this has benefited the Appellant as he has been given the benefit of the policy on restoration which applied from March 2002 and the guidelines applying from 1 December 2002, even though he brought in the goods in March 2001. We also agree that the decision to restore the car on payment of the duty sought to be evaded is proportionate in considering the balance between the Appellant's right to his property on the one hand, and the deterrence of smuggling, the protection of the revenue and other traders on the other hand.

Accordingly we dismiss the appeal.

JOHN F AVERY JONES

CHAIRMAN

RELEASE DATE: 8 December 2004

LON/04/8038