United Kingdom VAT & Duties Tribunals (Excise) Decisions

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Cite as: [2005] UKVAT(Excise) E852, [2005] UKVAT(Excise) E00852

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Latham v Customs and Excise [2005] UKVAT(Excise) E00852 (24 February 2005)

E00852

RESTORATION — passenger on a coach trip — left on coach goods slightly in excess of indicative quantities on return to England — passed through customs without declaring any goods — insufficient evidence as to source of money to buy some of the goods — appeal allowed.

MANCHESTER TRIBUNAL CENTRE

TREVOR ALBERT LATHAM Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: David S Porter (Chairman)

John M Lapthorne

Sitting in public in Birmingham on 12 January 2005

No one appearing for the Appellant

Zaheer Afzal instructed by the Solicitor's office for HM Customs and Excise for the Respondents

DECISION

Trevor Albert Latham (the Appellant) appeals against the Commissioners' refusal contained in their letter of 25 September 2003 to restore 720 cigarettes and 3.5 kg of hand rolling tobacco. He had left the tobacco and cigarettes on the coach in which he had been travelling when it returned to Dover Eastern Docks on 29 July 2003.

Mr Afzal of counsel appeared for the Commissioners, who called Richard Truscott as a witness. He also he produced a bundle of documents. As no one appeared for the Appellant, this Tribunal determined to proceed under rule 26(2) of the Value Added Tax Rules 1986 (as amended).

We find the following facts. The Appellant had been to the continent by coach and whilst there had purchased the goods. When the coach returned, the driver asked the passengers to disembark and advised them that H M Customs and Excise would seize anything left on the coach. The appellant disembarked without taking his belongings and the goods. He then went through customs without declaring the goods. We are told that the Appellant is elderly, losing his sight, and suffers from dementia and diabetes. It would seem that he left the coach in haste in order to take the appropriate medication for his diabetic condition. It appears that he might have forgotten to collect his goods from the coach.

When the customs officers search the coach, the only goods which they found were 120 duty free SKSF cigarettes in an holdall near the back seat, 600 Embassy No 1 in a carrier bag on the parcel shelf, 3 kg of Samson hand rolling tobacco and 0.5kg of Golden Virginia hand rolling tobacco in carrier bags also on the parcel shelf.

The Appellant wrote a letter to the Commissioners the day after his return (the letter is undated but was received by the Commissioners on 31 July 2003 two days after the forfeiture) asking them to allow him to have back the six packs of Sampson tobacco and the six packs of super king black cigarettes located in his black bag and his lunch box, which he had left on the coach. He stated that he had left the goods and holdall on the coach in error. He gave details of his medical conditions and the reason for his swift departure form the coach. In a subsequent letter received on 2 September 2003, he indicated that the cigarettes did not belong to him and he only wanted the hand rolling tobacco returned. We note that his earlier letter had identified both the cigarettes and the hand rolling tobacco. It is likely from the evidence that he purchased the hand-rolling tobacco for himself, but it is unclear for whom he bought the cigarettes and whether he or a third party paid for them.

In his review letter of 25 September 2003 Mr Truscott confirmed that he had taken a completely fresh look at the facts of the case from the Officer's notebook, the seizure documents and the correspondence. He noted that the Appellant was not in possession of the excise goods when he passed through the customs controls at Dover. He was unaware of any appeal against the validity of the seizure of the goods and they are now condemned as forfeit to the Crown by the passage of time. He also told the tribunal that the goods were the only items left on the coach and had clearly been abandoned.

Mr Afzal submitted that the Appellant had passed through customs without declaring the goods and he had clearly abandoned them on the coach. He accepted that the indicative levels at the time of the seizure were 3200 cigarettes and 3 kg of hand rolling tobacco. He acknowledged that the Commissioners could not allow a precedent to be set, so that anyone could leave their goods on a coach and claim them thereafter.

My colleague and I are not satisfied that the decision contained in the review letter of 25 August 2003 was one a reasonable body of Commissioners could have arrived at. The Appellant has admitted that he purchased all the goods. The cigarettes were well within the indicative level of 3200. There is no evidence as to the circumstances in which he purchased the cigarettes. If he bought them with his own money as a gift then they would have been purchased for his own use. The Appellant lives in Nottingham, which is some distance from the continent, and it might not be unreasonable for him to have bought 3.5 kg of hand-rolling tobacco for his own use. There is no evidence as to the number of cigarettes he smokes, nor how often he has been abroad. His purchase is only 0.5kg over the indicative level and without further evidence it is not possible to know whether that amount can reasonably be for his own use If a third party had paid for the goods then they could not have been purchased for his own use and would have been properly seized.

THIS TRIBUNAL HEREBY DIRECTS under section 16(4)(b) of the Finance Act 1994 that:

(1) The Commissioners do conduct a further review of the decision to refuse restoration of the goods and serve the findings of the review on both the Appellant and the Tribunal within 45 days of the release of this direction

(2) The Review be conducted by an officer not previously involved.

(3) The Review officer shall enquire of the Appellant as to the number of cigarettes he smoked at the time of the seizure and who paid for the cigarettes.

(4) That the Appeal is determined on the above basis and the Appellant is entitled to apply within 60 days of the release of the direction for costs

(5) That if dissatisfied with the Review the appellant will have a further right of appeal to this Tribunal

DAVID PORTER

CHAIRMAN
Release Date: 24 February 2005

MAN/03/8163