United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2005/E00858.html
Cite as: [2005] UKVAT(Excise) E00858, [2005] UKVAT(Excise) E858

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Spaven v Customs and Excise [2005] UKVAT(Excise) E00858 (24 February 2005)

E00858

EXCISE DUTIES — importation of 10,000 cigarettes from Spain — aeroplane traveller — forfeiture of goods — whether decision not to restore was reasonable — appeal dismissed.

MANCHESTER TRIBUNAL CENTRE

THOMAS SPAVEN Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Ian E Vellins (Chairman)

Marjorie P Kostick BA FCA CTA

Sitting in public in York on 27 January 2005

The Appellant in person

Ms Emma Piasecki, of counsel, instructed by the Solicitor for HM Customs and Excise for the Respondents

DECISION

This is an appeal by Mr Thomas Spaven, who resides in Leeds, against the decision on review of the Commissioners of Customs and Excise by letter dated 29 April 2004 not to restore to the Appellant 10,000 cigarettes seized by the Commissioners which were being imported by the Appellant without payment of duty when the Appellant returned by Air to Manchester from Spain on 13 November 2003. The Appellant had requested restoration of the cigarettes by letter dated 4 December 2003. The Commissioners made a decision to refuse restoration of the goods on 16 March 2004. The Appellant had requested a review of that decision by letter dated 17 March 2004. Following a review, the decision not to restore was confirmed on 29 April 2004.
At the hearing of this appeal at York on 27 January 2005, the Appellant represented himself. The Commissioners were represented by Ms Emma Piasecki, counsel.
Evidence was given at the hearing of this appeal by the Appellant himself and by the review officer, Mr Martin Little.

The Facts
On the basis of the evidence presented to us, consisting of the Commissioners' bundle of copy documents, and the oral evidence of the Appellant and Mr Martin Little, we find the following facts to have been established.
On 13 November 2003, the Commissioners' officer, Mr Martin Little, intercepted the Appellant in the green channel at Manchester Airport when the Appellant was returning to Manchester with his luggage following a flight from Alicante, Spain. The Appellant had, in his luggage, 10,000 Lambert and Butler cigarettes which were in excess of the guidelines of 3,200 cigarettes.
The Appellant told Mr Little, in reply to questions put to him, that he had travelled from Spain, that he had been away for one day, and that he had been travelling alone. He told the officer that his brother had gone as well but was not travelling with him. They had not come through together because the Appellant was getting the train home and his brother was in his own car. The Appellant told the officer that his brother lived at the same address. He was not aware of the Customs guidelines. He told the officer that the cigarettes belonged to him and that he had bought them in Benidorm, Spain, costing 1,200 Euros at 24 Euros a sleeve. He produced receipts and told the officer that he paid for them in cash. The Appellant had paid for the flight but his wife had booked the trip over the Internet at a cost of £90. He told the officer that no one had given him any money to help him buy the cigarettes, that he smoked 20 – 30 cigarettes a day and that the cigarettes would last him hopefully 12 months.
The Appellant told the officer that he did not have an open packet of cigarettes with him as he had smoked the last cigarettes in Spain. He did not have a lighter and told the officer that he had left his lighter in Spain.
The Appellant told the officer that he intended to smoke the cigarettes himself, and that he worked for himself in demolition and in buying and selling cars, earning an average of £200 - £300 a week. He stated that he had no financial commitments and lived with his mother, together with his wife, two children and brother. He told the officers he had last travelled abroad in May 2003 to Majorca, and that in 2003 he had travelled two or three times but that this was the first time he had brought cigarettes back. He told the officer that he had flown out with his brother on the same flight and returned on the same flight, and that his brother did not have any cigarettes as far as he knew. They had not come through the customs controls together because they were not travelling home together. He stated that he had not travelled to the airport together with his brother, and that his brother after the return flight had gone to Halifax to his girlfriends' house, unless his brother had gone straight home to his mother's house. Halifax was 20 miles from the Appellant's home. The Appellant had travelled to Manchester in a car driven by his wife. The £1,000 for the trip had come from his savings and he had saved for the trip.
Following the interview, Mr Little consulted his senior officer who agreed that the goods should be seized. Mr Little informed the Appellant that he was seizing the goods and at that point the Appellant told Mr Little that he was going. Mr Little noted in his notebook that the Appellant told him that he was going and that the Appellant abandoned the goods in the green channel at the benches. The officer noted that after swearing, the Appellant said "You can keep them".
The Appellant before leaving had signed the officer's notebook stating that he certified that it was a true account of the interview.
On 29 November 2003, the officer sent through the post to the Appellant the seizure information notice and other documents from the Commissioners.
On 4 December 2003, the Appellant wrote to the Commissioners requesting restoration of the 10,000 cigarettes, claiming that he bought them for his own personal use, that he did not receive a clear reason for the seizure, and the officer had left before fully explaining to the Appellant. He stated that he had bought the cigarettes solely for his own use and had no intention of receiving any monies whatsoever for them.
The Commissioners wrote to the Appellant on 18 December asking the Appellant to clarify the appeal option he wished to pursue, namely whether he was asking for the items to be restored to him, or whether he wished to appeal the legality of the seizure. The Appellant clarified to the Commissioners that he was requesting restoration of the goods.
On 16 March 2004, Mr Little wrote to the Appellant informing him that the Commissioners had decided not to offer restoration of the goods to the Appellant as they had found that there were no exceptional circumstances that would justify a departure from their then current policy. The officer explained the reasons namely that the cigarettes were more than three times the Customs guidelines, that the Appellant had come through the blue channel separately attempting to evade controls, that he had claimed to be smoking 20 – 30 cigarettes a day but carried no smoking paraphernalia, that he had told an unbelievable story about not returning with his brother and that on being told that the goods were liable to seizure had abandoned the goods in the green channel.
The Appellant then wrote to the Commissioners on 17 March 2004 requesting a review. In that letter, he agreed that he was over the guidelines, but stated that he did not come through the blue channel, that he did not reach any channel because, as the Appellant claimed, that he did not reach any channel because, as soon as his suitcase came off the conveyor belt he had been stopped by the officer. The Appellant claimed that he had shown the officer his lighter. He stated that his brother had already left the airport when the Appellant was stopped. He further claimed that he did not abandon the goods, as when the officer had told him the goods were being seized, the officer walked away and the Appellant thought that the interview was over so he left. He claimed that the officer, Mr Little, had been unclear in explaining the situation to him.
A review officer, Mr A McNeight, carried out the review and notified the review decision to the Appellant on 29 April 2004. The review officer examined Mr Little's notebook, together with the documents and correspondence, and considered the appropriate legislation and the policy of the Commissioners.
Mr McNeight noted that the Appellant had not appealed the legality of the seizure and that the goods had been condemned as forfeit to the Crown by the passage of time. The Commissioners' policy in regard to restoration of condemned excise goods were that these goods should only be restored in exceptional circumstances. Mr McNeight considered that there were no exceptional circumstances in the case of the Appellant that would warrant a deviation from the then current policy of non-restoration. Mr McNeight commented that the officer had noted that the Appellant had three times more than the minimum indicative level that was used as a guideline by officers of the Commissioners. Mr McNeight considered that the Appellant's explanation for not exiting together with his brother was suspicious, given that they had been on the same outward and inward flights, and both lived with the Appellant's mother, and the officer considered that it was reasonable that the Appellant would have discussed his plans with his brother. Although the Appellant had claimed in his letter of 17 March 2004 that he showed the officer a lighter, he had endorsed the officer's notebook, which contained the answer that the Appellant had left his lighter in Spain. Mr McNeight commented that it was unusual for a smoker who smoked 20 – 30 cigarettes a day to have no open cigarettes or a lighter. The Appellant had been abroad two to three times in the previous year, but had claimed that he had not bought cigarettes there before. Mr McNeight considered that unusual. The Appellant had been asked to submit evidence to show exceptional circumstances but had not done so. The officer upheld the original decision.
The Appellant appealed on 17 May 2004.
At the hearing of this appeal on 27 January 2005, the Appellant in oral evidence claimed that he was not stopped in any channel but had been stopped by Mr Little at the side of the carousel as he was leaving the carousel with his luggage. He considered that there was a discrepancy in the officer's evidence as in the officer's notebook the officer had recorded that he had stopped the Appellant in the green channel, but in the letter dated 16 March 2004, the officer had stated that the Appellant had come through the blue channel. Mr Little, in his evidence at the hearing, stated that he had stopped the Appellant in the green channel, after the Appellant had passed by the red channel, which indicated to Mr Little that the Appellant had not declared the tobacco. Mr Little's evidence was that in the letter of 16 March 2004, Mr Little had made a mistake in referring to the channel as a blue channel rather than a green channel. We preferred the evidence of Mr Little that the Appellant had in fact been stopped in the green channel. The officer's notebook, which had been signed by the Appellant, clearly stated that Mr Little had stopped the Appellant in the green channel.
The Appellant, at the hearing, gave evidence that he had not abandoned the goods but that the goods were on a table and that when Mr Little had turned round, another officer had told the Appellant that he could leave at any time, and, as a consequence, the Appellant walked out thinking that the goods were already taken from him. At the hearing, Mr Little described how he had told the Appellant that the Commissioners were seizing the goods and the Appellant had told Mr Little that he was going. When Mr Little went to collect his notebook and prepare the appropriate notices, the Appellant left, telling another officer, after swearing, that the Commissioners could keep the cigarettes. We preferred the evidence of Mr Little. We find that the Appellant left the airport without staying to receive the notices, and that the Appellant did abandon his goods in the manner described by Mr Little.
The Appellant, at the hearing, claimed that he had had matches in his pocket at Manchester, although not a lighter, and that he had shown the matches to Mr Little. Mr Little gave evidence that the Appellant, at his interview, had told the officer that he did not have any lighter with him and had made no claim to have matches in his pocket. The Appellant had not shown matches to Mr Little. The Appellant had signed Mr Little's notebook in which Mr Little's note had been that the Appellant had told him that the Appellant had no lighter. We preferred the evidence of Mr Little. We find that the Appellant did not have any matches or lighter with him on his return to the United Kingdom.
The Appellant, at the hearing, agreed that he had no open packet of cigarettes with him when he returned to the United Kingdom. He gave the reasons for this that there had been a delay of a couple of hours at the airport in Spain and that he had smoked the last of his open packet of cigarettes at that time. We did not find this explanation credible. If the Appellant was a regular smoker, who smoked 20 to 30 cigarettes a day, we find that it would be reasonable to expect him to have cigarettes and material to light the cigarettes in his pocket.
At the hearing, the Appellant gave evidence that he was not attempting to mislead Mr Little at his interview when he told the officer that he was travelling alone but had added that his brother had been on the trip as well but had not been travelling with him. The Appellant claimed that his brother had travelled to Manchester Airport in his brother's own vehicle but that the Appellant himself had been taken to Manchester Airport by his wife. They had met at the airport and flown to Spain together to stay in a Villa owned by their father. They had returned on the same flight, but he claimed that his brother was returning to Halifax in his brother's own car, but that the Appellant was going back by train to Leeds. He could not remember whose suitcase came off the carousel first. Although his brother lived at the same house as the Appellant, with their mother in Leeds, sometimes his brother stays at the home of his girlfriend in Halifax. We find that the Appellant had attempted to deceive Mr Little when questioned by Mr Little at Manchester Airport. We find that the Appellant was not travelling alone but with his brother. It was clear that his brother was travelling with the Appellant. We find that the Appellant deliberately attempted to disguise the fact that the Appellant and his brother were travelling together. We find the Appellant's explanation not to be credible. We do not find it credible that the Appellant had not discussed with his brother on the flight back to Manchester where his brother would be travelling after they left the airport. The Appellant had told the officer at his interview that his brother had gone to Halifax to his girlfriend's house "unless he has gone straight home to my mum's". The Appellant would reasonably have been expected to have discussed with his brother precisely where his brother was going from the airport and indeed to obtain a lift from his brother in his brother's car if his brother was intending to travel to the home of their mother in Leeds, or at least to take the Appellant by car to the Appellant's mother's home which was only 18 to 20 miles away from the brother's girlfriend's house in Halifax.

Conclusions
We find that the decision of the Commissioners was reasonable and that there has been no error on a point of law by the Commissioners.
We have found that on 13 November 2003, the Appellant had been stopped at Manchester Airport when returning to the United Kingdom from Spain carrying 10,000 cigarettes. He did not declare the goods in the red customs channel. We have found that he was stopped by Mr Little in the green channel. The quantity of cigarettes, namely 10,000 Lambert & Butler cigarettes, was more than three times the guidelines set out in the tobacco products regulations. Regard was given by the Commissioners in reaching the decision not to restore the cigarettes to the Appellant, and the review decision maintaining the refusal to restore, to the conduct of the Appellant. He had come through the channel separately from his brother with whom he was travelling without a satisfactory explanation for this. He had carried no smoking paraphernalia in support of his claim to be smoking 20 to 30 cigarettes a day. He had given an unbelievable story about not travelling with his brother and had abandoned the goods after being told that the goods were liable to seizure.
We find that Mr Little, following the interview, was satisfied that the goods were for a commercial use and informed the Appellant that the Commissioners were seizing the goods. The goods were seized under Section 139 of the Customs and Excise Management Act 1979 as being liable to forfeiture. The Appellant did not appeal the legality of the seizure and the goods were thus condemned as forfeit to the Crown by the passage of time.
We find that the Commissioners have reasonably applied their policy in relation to restoration of condemned excise goods, namely that the goods should only be restored in exceptional circumstances, and we find that the Commissioners were reasonably satisfied that there were no exceptional circumstances that would warrant a deviation from their policy of non restoration. We find that the decision not to restore was reasonable, and the review decision not to restore the goods was also reasonable.
By Section 139 of the Customs and Excise Management Act 1979, the Commissioners have the power to seize the goods. Under Section 152, the Commissioners may, as they see fit, restore anything forfeited or seized. We find that the Commissioners acted reasonably in concluding that there were no exceptional circumstances which would justify the restoration of the goods to the Appellant. Both the officers took into account all the circumstances and the information given to the Commissioners by the Appellant.
Our findings in connection with the evidence at the hearing of this appeal are that the Appellant has not satisfied us that there are grounds to indicate that the reasons relied on by the initial officer and by the review officer were incorrect. We find that the Commissioners have satisfied the onus of proving that the goods were held for a commercial purpose. We find that they were not for the Appellant's own use. The decision not to restore the goods was in line with the Commissioners' publicly stated policy and was a reasonable exercise by the Commissioners of their discretion. The Commissioners have not acted in a way that no reasonable panel of Commissioners could have acted, they have not taken into account any irrelevant matters or disregarded something to which they should have given weight and have made no error in law.
The appeal is dismissed. The Commissioners did not apply for costs and we make no order as to costs.

IAN E VELLINS

CHAIRMAN
Release Date: 24 February 2005

MAN/04/8068