United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2005/E00910.html
Cite as: [2005] UKVAT(Excise) E00910, [2005] UKVAT(Excise) E910

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Hudspeth & Anor v Revenue & Customs [2005] UKVAT(Excise) E00910 (12 September 2005)

E00910

EXCISE DUTY RESTORATION OF GOODS — conditions — cigarettes purchased for third parties and not for own use or as gifts — restoration of cigarettes refused by review letter — hand rolling tobacco restored by review letter having been imported for traveller's own use — decision held to be reasonable — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

MR C & MRS E HUDSPETH Appellants

- and -

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Michael Johnson (Chairman)

Warren Snowdon

Sitting in public in North Shields, Tyne and Wear on 23 August 2005

The Appellants appeared in person

Angela Phillips, counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2005


 


DECISION

1. Mr and Mrs Hudspeth have appealed against the decision of a review officer of H M Customs and Excise ("Customs"), Julie Wiggs, not to restore to them 3,200 cigarettes of three different brands seized from Mrs Hudspeth by Customs. The seizure took place at Leeds/ Bradford Airport shortly before midnight on 21 December 2004, when Mr and Mrs Hudspeth were returning to the UK from Spain together with a friend.
2. In her decision letter, dated 4 March 2005, Ms Wiggs decided that 4.5 Kg of Samson hand-rolling tobacco that the travellers were also transporting should nevertheless be restored to the Appellants.
3. The circumstances of this appeal are unusual, because under the applicable guideline, referred to in paragraph 9 of Customs' Statement of Case in this appeal, travellers are each normally allowed to bring back 3,200 cigarettes without difficulty. That however depends upon the cigarettes in question being for the traveller's own use, and not with a view to their transfer to another person for money or money's worth.
4. As he explained to the tribunal, Mr Hudspeth suffers from ill-health. Mrs Hudspeth acts as his carer. When they approached Customs' checkpoint at the airport on landing, Mr Hudspeth was in the lead. He passed through the checkpoint without being stopped, but his wife, who was following, was stopped.
5. Mrs Hudspeth was then questioned on her own. Mr Hudspeth was not allowed back to be with his wife. Consequently the record of interview obtained by Customs is of questions asked of Mrs Hudspeth and replies given by her alone.
6. It is not in dispute in this appeal that Mrs Hudspeth told Customs that the cigarettes were not for her or her husband. The cigarettes consisted of 2,800 of the Lambert & Butler brand, 200 Dianas and 200 Superkings. Mrs Hudspeth told the officer of Customs who interviewed her, Mr A G Patton, that the Lambert & Butler cigarettes were for her daughter, the Dianas were for her husband's nephew, and the Superkings were for "the lady next door". She said that the Samson hand-rolling tobacco was for herself and her husband, which led to Ms Wiggs finding on review that the tobacco should be restored.
7. We find that Mrs Hudspeth was then asked by Mr Patton if the cigarettes were for gifts. (This was only a few days before Christmas, so that might well have been the case.) We find, however, that Mrs Hudspeth stated that the daughter had given her money to buy the Lambert & Butlers for her, that her husband's nephew had given him money for the Dianas, and that the "lady next door" sometimes gave Mrs Hudspeth money. The officer formed the view that, as well as not being for the travellers, none of the cigarettes were for gifts.
8. The case for the Appellants was presented to the tribunal by Mr Hudspeth. He explained to the tribunal that he had paid for all the cigarettes and tobacco. The Lambert & Butlers were for smoking by the Hudspeths themselves; otherwise the cigarettes were for Christmas presents for two of his daughters. Indeed, he said, his nephew didn't smoke at all, his wife's daughter had not been seen by her for many months, and the "lady next door" was aged 77 and it was nonsense to suggest that any of the cigarettes were for her. He said that his wife's replies to Customs' questions had simply been made up on the spur of the moment.
9. Mr Hudspeth did not attempt to argue that his wife had not made the replies alleged by Customs, but he advanced as the explanation for the replies that his wife was intoxicated at the time. He said that she had consumed about 15 Bacardis & Cokes during the day leading up to her interview with Customs. Mr Hudspeth moreover described his wife as "semi-illiterate". In tribunal, he presented her replies to Customs' questions as being completely unreliable. He pointed out that, when she spelt out her name in capitals, beneath her signature on the seizure Form C156, she omitted the letter "d" from "Hudspeth".
10. Mrs Hudspeth told the tribunal that she "panicked" in giving the answers she did. We find, however, that she signed Mr Patton's notebook entry as being correct, as well as signing the Form C156, and both these signatures are of elegant and sure appearance. In each case, the signatures themselves are correctly spelt, "E hudspeth" (a capital letter not having been used for the first "H").
11. We also note that Mr Patton, in his letter to Mr Hudspeth dated 12 January 2005 refusing restoration of the cigarettes and tobacco, ie the decision that gave rise to the Hudspeths' request for a review, rejected Mr Hudspeth's contention, expressed in a letter to Customs dated 28 December 2004, that his wife was in a "semi-illiterate … state of mind". Mr Patton went on to state in his letter –

"She may well have consumed alcohol, but at no time was I aware of her being intoxicated."

12. In his subsequent undated letter to Customs requesting a review of Mr Patton's decision, received by Customs on 19 January 2005, Mr Hudspeth reiterated that his wife was "semi-illiterate" and that she had had a large amount to drink. He wrote that she had made false statements in her state of mind.
13. Ms Wiggs, in her review letter, makes the point that Mrs Hudspeth would not have been allowed onto the aircraft bringing her back from Spain if she were drunk, and that she would not have been allowed to consume further alcohol on the aircraft if, once having taken off, she thereafter appeared to be drunk. Ms Wiggs also stated that, if a Customs officer finds that a traveller appears to be drunk when about to be interviewed, the interview does not proceed. Ms Wiggs says that special arrangements are made in such a case.
14. It is clear to us that Mr Patton did not think that there was any reason for him to refrain from interviewing Mrs Hudspeth in this case on the ground that she might have been intoxicated.
15. We think that, had Mrs Hudspeth indeed consumed 15 Bacardis & Cokes, as Mr Hudspeth maintained, it is highly likely to have been obvious to everyone that she was intoxicated. We find that this contention of intoxication is against the weight of the evidence that is otherwise before us.
16. Mrs Hudspeth gave her evidence in tribunal in a clear and articulate way and not so as to leave us with any reservations as to her state of mind apart from the matters raised by her husband. We think that the likelihood is that she answered the questions asked by Mr Patton in interview without there being any sort of suggestion that her answers might be suspect in any way.
17. We were impressed by the calmness of Mrs Hudspeth in tribunal but, by contrast, unimpressed with the demeanour of her husband.
18. We think that the truth was what Mrs Hudspeth told Mr Patton in interview, and not as her husband now represents. If, as we are persuaded, Mrs Hudspeth was not intoxicated at the time of the interview, what reason would she have had to put forward a tissue of lies, the result of which would be to deprive her of the benefit of her guideline quantity of 3,200 cigarettes brought back for her own use? Would not the simplest course have been to say, "The cigarettes are mine", as she did in the case of the Samson tobacco? Is that not what anyone would have been likely to say at the time, having regard to the number of cigarettes being carried?
19. So what Mrs Hudspeth did say is, in our view, indicative that she was an honest woman and told the truth. She might have said, "The cigarettes are mine", or "ours", as no doubt her husband would have wished, but instead she explained the truth about the cigarettes. The alleged "panicking" was that Mrs Hudspeth decided to tell the truth, rather than to give the version that would have resulted in her being waved through.
20. We conclude that Ms Wiggs' decision to offer restoration of the hand-rolling tobacco but withhold restoration of the cigarettes corresponds to the reality that the cigarettes, in contrast to the tobacco, were not for own use. We have no hesitation in accepting the submission of Miss Phillips, appearing for Customs, that Ms Wiggs' decision was in the circumstances an entirely reasonable one.
21. We indicated at the conclusion of the hearing that we had decided to dismiss the appeal, but that we would be issuing a written decision giving our reasons. This document is the promised record, setting out our grounds for having dismissed the appeal.

MICHAEL JOHNSON

CHAIRMAN
Release Date: 12 September 2005

MAN/05/8017