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United Kingdom VAT & Duties Tribunals (Excise) Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> McKinnon v Revenue and Customs [2005] UKVAT(Excise) E00922 (11 October 2005)
URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2005/E00922.html
Cite as: [2005] UKVAT(Excise) E922, [2005] UKVAT(Excise) E00922
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E 0922
CROSS BORDER SHOPPING; EXCISE DUTIES importation of excise goods above guidelines; forfeiture of goods; refusal to restore; Customs & Excise Management Act 1979 section 139 (1) and 152(b); Appeal relating to ancillary matter; Finance Act 1994 section 14(1)(d), 16(4)&(8), and Schedule 5 paragraph 2(1)(r); appeal heard in Appellant's absence; Value Added Tax Tribunal Rules 1986 SI 1986 No. 590; Rule 26.
EDINBURGH TRIBUNAL CENTRE
ALBERT McKINNON Appellant
- and -
HM REVENUE & CUSTOMS Respondents
Tribunal: (Chairman): J Gordon Reid, QC., F.C.I.Arb.,
(Member): Mr K Pritchard, OBE., BL., WS
Sitting in Edinburgh on Monday 26 September 2005
for the Appellant HEARD ON PAPERS ONLY
for the Respondents Mr Andrew Scott, Shepherd & Wedderburn WS
© CROWN COPYRIGHT 2005.
DECISION
Introduction
This is a "restoration" appeal under section 152(b) of the Customs & Excise Management Act 1979, relating to a quantity of cigarettes and tobacco seized from the Appellant at Glasgow Airport on his return from Spain. Mr Andrew Scott, solicitor, Shepherd & Wedderburn, Edinburgh, appeared on behalf of the Respondents ("Customs"). There was no appearance by or on behalf of the Appellant. From information provided by Mr Scott we were satisfied that the Appellant was aware of the Hearing date and knew that his solicitors or former solicitors, Messrs Andersons, Glasgow, would not be appearing on his behalf. We delayed the start of the Hearing for about 30 minutes but the Appellant did not appear.
Mr Scott invited us, under reference to Tribunal Rule 26(2), to proceed to consider the appeal in the absence of the Appellant. We agreed to do so, bearing in mind Tribunal Rules 26(3) & 28(1). Customs had already lodged a bundle of documents and served a witness statement of Customs Officer Ian Sked in terms of Tribunal Rule 21 to which no notice of objection had been served by or on behalf of the Appellant. No oral evidence was led. No productions have been lodged by or on behalf of the Appellant.
Facts
We accept as reliable the evidence of the facts stated in the witness statement of Ian Sked. In summary, on 29/11/04, the Appellant, travelling with one John Brown, arrived at Glasgow Airport having travelled there from Spain. On examination of his baggage, 9000 Regal King Size cigarettes and 4.5kg of hand rolling tobacco (the "goods") were found. He was interviewed as was Mr Brown. The substance of the interview is set out in Mr Sked's statement and the detail is to be found in the notebook of officer McAllister [R/1]. In essence, the Appellant was unemployed, in receipt of State Benefits, and had savings of about £600. He paid 30.5 euros for each sleeve of cigarettes and 36 euros for 500g of tobacco. Had these goods been sold in the United Kingdom, the price would have been about £3,015. This was his third trip abroad in 2004. On at least one of the previous trips he bought back a similar quantity of cigarettes and tobacco. Customs officers were not satisfied that the goods were for his own use. On the contrary, they were satisfied that the goods were being held by the Appellant for a commercial purpose. They took the view that the Appellant was unable to finance the purchases and the several trips abroad. The goods were seized. The duty payable on the goods amounted to £1,845.50. The Appellant was issued with a Seizure Information Notice [R/2].
The Appellant subsequently engaged the services of Messrs Andersons, solicitors, Glasgow. They challenged the seizure which led Customs to bring "condemnation" proceedings. At the same time, they also requested restoration of the goods (see section 152(b) of the 1979 Act). The Appellant did not defend the condemnation proceedings and, on 17/5/05, the Sheriff at Paisley, granted decree and condemned the goods as forfeit (see the extract decree dated 1/6/05 [R/8]).
By letter dated 11/1/05 [R/4], Customs refused to restore the goods on the basis that it was their policy not to restore seized goods such as cigarettes and tobacco unless there were exceptional circumstances justifying a departure from that policy. By letter dated 31/10/05 [R/5], Messrs Andersons sought a review of that decision. They said there were exceptional circumstances, namely that the Appellant was a chronic smoker and that the Appellant could provide evidence of this from his "Doctor, Social Worker and Psychiatrist". No such evidence has ever been produced. By letter dated 15/3/05 [R/7], Mr Sked, the reviewing officer, confirmed the original decision not to restore.
Discussion
Mr Scott relied on the evidence of Mr Sked, the documents produced and in particular the decree condemning the goods as forfeit. He made brief reference to Gascoyne v CC&E, 2005 Ch 215 for the proposition that given the condemnation decree, the Appellant was not entitled to challenge the legality of the seizure.
The grounds of appeal before the Tribunal are that the goods were for the Appellant's own personal use and were not for any commercial purpose; and that the Appellant is a compulsive chain smoker. The Appellant challenged the legality of the seizure of the goods. This led to Customs raising condemnation proceedings at Paisley Sheriff Court (see sections 139(6) and 145 of and Schedule 3 paragraphs 3 and 6 to the 1979 Act). The Appellant, for one reason or another, did not defend these proceedings and the goods have been condemned as forfeit by the Court. In these circumstances, it is not open to the Appellant to renew that challenge before this Tribunal (see Gascoyne at paragraphs 19-20, 25, 26, 28, 47, 51 and 76; we have also noted the more recent case of CC&E v Eatock & Ors 7/3/05 2005 EWHC 330 particularly paragraphs 23-29, and 49).
Section 152(b) of the 1979 Act gives Customs a discretion. They have a general policy of not restoring forfeited goods of the type in question. Customs are entitled to have such a policy. We cannot say that such a policy is disproportionate, irrational or wholly unreasonable. The underlying reasoning for the policy is set forth in the correspondence. The officers dealing with this case initially and on review were entitled, in our opinion, to take the view that there were no exceptional circumstances justifying a departure from that policy. We are satisfied from the correspondence and the evidence (which we accept as credible and reliable) that the decision to refuse to restore was one which could reasonably have been arrived at in the circumstances. Having regard to the limited nature of our jurisdiction in this type of appeal (section 14(1)(d) and 16(4)&(8) of, and Schedule 5 paragraph 2(1)(r) to the Finance Act 1994), the appeal must therefore be refused.
Result
The appeal is dismissed. In accordance with Customs' usual practice in this type of case, Mr Scott stated that if the appeal were to be dismissed, he would not seek expenses. We shall therefore find no expenses due to or by either party. Finally, we draw the Appellant's attention to Tribunal Rule 26(3).
J GORDON REID, QC., F.C.I.Arb.,
CHAIRMAN
RELEASE: 11 October 2005
EDN/05/8001