United Kingdom VAT & Duties Tribunals (Excise) Decisions

E00885

EXCISE DUTY — beer seized at Coquelles — joint trip — Appellant claiming restoration of his share — claimed intended for brother's wedding — discrepancies in evidence — decision of Customs reasonably arrived at — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

ABBAS ALI Appellant

- and -

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Elsie Gilliland (Chairman)

J T Brian Strangward

Sitting in public in Birmingham on 21 March 2005

The Appellant in person

Ian Speed of counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2005

DECISION

1. The appeal before the tribunal was that of Abbas Ali (the Appellant) against a decision of Customs on review on 28 July 2004 not to restore to the Appellant goods seized from him when with two companions Sharafat Khan and Amar Jawaid he was stopped at the UK Control Zone at Coquelles France on 8 May 2004. They were travelling in a Mercedes Sprinter van which had been hired by Sharafat Khan. The total of the excise goods in the van comprised 1200 litres of super strength beer (Tennents Skol and Carlsberg Special Brew) and all three agreed that the quantity belonged to them equally. Sharafat Khan had produced a receipt for 100 cases of beer. Accordingly the Appellant was looking for restoration of 32-33 cases which he claimed was his share. Only the goods claimed by the Appellant were the subject of the appeal. We were told by counsel for Customs that the vehicle was restored to the hire company and the other two travellers had not sought restoration of their goods.
2. The Appellant represented himself at the hearing and gave evidence. In his evidence to the tribunal he confirmed that he had been questioned by a Customs officer and had signed the interview notes. He and his friends had bought the beer for personal not commercial use as a gift for his brothers wedding. We have seen from those notes that he had said that his share of the goods cost about £400; that he was unemployed and had saved for them; that they had all three organised the trip and had all paid for the Euro-tunnel ticket. At the hearing he acknowledged that there were discrepancies between the information that he had given at the interview as to the date venue and numbers attending the wedding and that of Amar Jawaid who had also been interviewed (Sharafat Khan had refused to be interviewed). In fact the planned wedding had been delayed due to a death but he said had taken place on 5 September. He had not brought any paperwork to confirm this. He had however a receipt for drinks he had had to purchase to replace those seized. The interviewing officer had queried beer only having been bought for a wedding and we note that the receipt produced was for a variety of drinks including champagne. The receipt for £978.80 was dated 2 September but the Appellant sought to explain that the receipt had been given on delivery of the goods not on the earlier purchase. Later he said that it was Amar Jawaid who had put the cash up for him and that he still owed him money having paid off about £100 so far that being in nearly a year. It is clear that the view taken by the Customs officers was that this was a commercial enterprise organised and financed by Sharafat Khan who had been stopped on previous occasions and from whom goods had been seized before. He was a shopkeeper and could sell beer in his shop.
3. The Appellant has sought restoration of the goods. There were no condemnation proceedings and thus the Appellant cannot now challenge the lawfulness of the seizure. The review officer did not attend the hearing but the bundle of documents produced to us included the review letter copies of the sets of interview notes and correspondence exchanged between the parties. The power of the tribunal in exercising its jurisdiction with regard to excise duties is delineated in section 16 of the Finance Act 1994. If we are satisfied that the review officer could not reasonably have arrived at her decision whilst we do not have the authority to restore the seized goods where appropriate we may direct a further review.
4. In the review letter the review officer set out the policy of Customs on seized goods being that they would not normally be restored though each case was reviewed on its merits to see if there were exceptional circumstances. The officer looked at the matter afresh. She considered the interview records and noted that the quantities of beer brought in were well above the indicative levels; she referred to the discrepancies in the evidence and that the guests had apparently been expected all to drink beer; she calculated that the evaded duty was higher than the cost of the goods and thus she did not see proportionality as an issue; and she looked at the Appellant's employment and financial position to see if he could afford the goods. She concluded also that no hardship had been claimed or established. The review officer saw no reason to disapply the policy of Customs of non-restoration.
5. With regard to the evidence of the Appellant at the hearing we do not find this credible. He was seeking to address points made on the review with a revised version of what had been said previously. The review officer clearly was not aware that the wedding had been cancelled though it was to have taken place on 22 May and the Appellant could have referred to it specifically in his letter of request for a review of 7 July 2004. No evidence was presented to us that the wedding on which the submission as to personal use was based did take place or that the receipt which we have queried in any event related to it. Further it was at the end of the hearing that the Appellant referred to cash advanced to him by Amar Jawaid having insisted before that he had paid for himself.
6. We are satisfied that in making her decision the officer took into account all relevant matters and did not give weight to irrelevant matters. Her decision was a reasonable one.
7. The appeal is dismissed.
8. The Respondents have not sought costs and we make no direction as to costs.

ELSIE GILLILAND

CHAIRMAN
Release Date: 24 may 2005

MAN/04/8109