United Kingdom VAT & Duties Tribunals (Excise) Decisions

Lacey v Revenue and Customs [2005] UKVAT(Excise) E00923 (27 October 2005)

E00923

EXCISE DUTY — restoration of excise goods and motor vehicle — strong circumstantial case to support a finding of commercial importation — Appellant stated his job was in jeopardy because he could not get to work on time without his vehicle — Appellant failed to explain the position regarding the other vehicle registered in his name — no exceptional hardship — the offer of restoration of the vehicle on payment of a fee was proportionate — review decision reasonable — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

MICHAEL JAMES LACEY Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Michael Tildesley OBE (Chairman)

J T Brian Strangward

Sitting in public in Birmingham on 6 September 2005

The Appellant did not appear and was not represented

Shahzad Aziz, instructed by the Acting Solicitor for HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2005


 


DECISION

The Appeal

1. The Appellant was appealing against the Respondents' decision on review dated 17 March 2005 refusing restoration of excise goods (12 kilograms of hand rolling tobacco, 60 litres of beer and 100 cigars) and offering restoration of a Ford Escort van, registration number S904 LFV, on payment of a fee in the sum of £1,320.10.
2. The Appellant's grounds of appeal were that there was no evidence to prove that he was buying the excise goods to sell on and make a profit. Further he did not have the means to pay the restoration fee for his vehicle.

The Issue

3. On 3 December 2004 Customs Officers at the UK Control Zone, Coquelles, stopped the Appellant who was driving a Ford Escort van (registration number S904 LFV). Miss Zoe Beet was a passenger in the vehicle. The Appellant informed the Customs Officers that he purchased one box of tobacco from Dunkirk. When the vehicle was searched the Customs Officers discovered another box of tobacco under card at the back of the seats. After questioning the Appellant, the Customs Officers seized the tobacco, beer, cigars and the Ford Escort van because they were not satisfied that the excise goods had been imported for own use.
4. On 4 December 2004 the Appellant requested restoration of the excise goods and the Ford Escort van. He also appealed against the seizure of the goods and the vehicle, which he withdrew by letter, dated 7 February 2005. On 10 February 2005 the Respondents refused restoration of the goods but offered restoration of the Ford Escort van on payment of a fee of £1,320.10. On 16 February 2005 the Appellant requested a review of the decision refusing restoration of the goods and offering conditional restoration of the vehicle. On 17 March 2005 the Respondents on review confirmed their decision of 10 February 2005.
5. The issue to be determined by the Tribunal is whether the Respondents' decision on review of 17 March 2005 was a decision, which no reasonable body of Commissioners could have arrived at. In order for the decision to have been reasonable the decision maker must have considered all relevant matters and must not have taken into consideration irrelevant matters.

The Hearing

6. The Appellant did not appear at the hearing despite being notified of the hearing date by letter. The Tribunal received no communication from the Appellant explaining his non-attendance at the hearing. In these circumstances we granted the Respondents' application to proceed to hear the Appeal in the Appellant's absence.
7. We received in evidence the witness statement of Deborah Carole Gillespie, the Officer who conducted the review of the Respondents' decision refusing restoration of the excise goods and offering conditional restoration of the Ford Escort van. The witness statement and enclosures were sent to the Appellant on the 6 June 2005. The Appellant did not object in writing to Mrs Gillespie's statement.
8. We also considered the Appellant's correspondence with the Respondents, which was included in the bundle of documents.

The Review Decision of 17 March 2005

9. Mrs Gillespie took account of the following facts to support her decision refusing restoration of the excise goods and offering restoration of the Ford Escort van on payment of a fee:

(1) The Appellant misled the stopping Customs Officers about the number of boxes of tobacco brought into the United Kingdom. The Appellant initially failed to declare the box of tobacco hidden behind the seats.

(2) The amount of hand rolling tobacco imported by the Appellant and Miss Beet was twice the guide level of six kilograms of tobacco for two persons.

(3) The excise goods were paid for in cash.

(4) The Appellant was unable to produce receipts for the goods purchased. His explanation that French Customs had retained the receipts was implausible.

(5) The Appellant's and Miss Beet's statements about the number of the roll ups smoked per day were inconsistent with their statements about the number of tobacco pouches consumed per week.

(6) Miss Beet did not know the correct price for a pouch of hand rolling tobacco bought from a retail shop in the United Kingdom.

(7) The Appellant travelled across the Channel on six occasions in the seven months prior to when he was stopped on 4 December 2004. All but one of those trips involved leaving the United Kingdom late at night and returning in the early hours of the morning. The beer and tobacco warehouses catering for travellers from the United Kingdom were the only retail outlets open at these hours.

(8) The Appellant and Miss Beet gave responses to the Customs Officers which underestimated their cross Channel trips in the six months prior to 4 December 2004.

(9) The Appellant was shown in official records to be the registered keeper of another vehicle, a Peugeot 406 motor car, registration number LJ 02 BRV.

10. Mrs Gillespie concluded from the above facts that the Appellant purchased the excise goods for a commercial purpose, to be sold on at a profit. Mrs Gillespie did not consider that the Appellant suffered exceptional hardship from the loss of the Ford Escort van. He was the keeper of another vehicle and could recover the Ford Escort van if he paid the fee of £1,320.10. Mrs Gillespie, therefore, decided that there were no grounds for restoring the excise goods. The decision to offer restoration of the Ford Escort van on payment of a fee in the sum of £1,320.10, equivalent to the duty on the excise goods seized, was, in her view, reasonable and proportionate.

The Appellant's Representations

11. The Appellant contended that he bought the excise goods for personal consumption and as Christmas presents. He was principally concerned with recovering his Ford Escort van which he needed to travel to and from work. The Appellant was finding it virtually impossible to get to work on time by public transport. He produced a letter from his employers which stated that the Appellant's time keeping had deteriorated noticeably since the seizure of his vehicle. Further the Appellant's continuing employment would be in jeopardy if his time keeping did not improve. His employers confirmed that their establishment was located on an industrial state which had poor public transport links.
12. The Appellant considered that the amount of the fee demanded by the Respondents for the return of his vehicle was outrageous. He and his partner had already lost £900 which they used to purchase the excise goods. The Appellant was still paying for the Ford Escort van, the balance outstanding stood at £1,467 as on 16 February 2005. The Appellant and his partner were supporting two young children and did not have the means to pay the fee for return of his Ford Escort van.

Our Reasons for Our Decision

13. The Respondents' power regarding restoration of goods which have been forfeited or seized is set out under section 152(b) of the Customs and Excise Management Act 1979. Once the power is exercised whether in the form of a positive decision to restore on terms or a refusal to restore, the person affected has a right of appeal to the Tribunal. The powers of the Tribunal are limited in the terms set out in section 16(4) of Finance Act 1994 which provides that:

"confined to a power, where the Tribunal are satisfied that the Commissioners or other person making the decision could not reasonably have arrived at it, to do one or more of the following, that is to say –

a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the Tribunal may direct;

b) to require the Commissioners to conduct, in accordance with the directions of the Tribunal, a further review of the original decision;

c) in the case of a decision which has already been acted on or taken effect and cannot be remedied by a further review, to declare that decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of unreasonableness do not occur when comparable circumstances arise in future.

14. The precondition to the Tribunal's exercise of one or more of its three powers, namely, that the person making a decision could not reasonably have arrived at it falls within the guidance given by Lord Lane in the decision in Customs and Excise v JH Corbitt (Numismatists) Ltd [1980] STC 231 at page 239:

"…..if it were shown the Commissioners had acted in a way in which no reasonable panel of commissioners could have acted; if they had taken into account some irrelevant matter or had disregarded something to which they should have given weight".

15. The Appellant asserted in his correspondence with the Respondents that the excise goods were purchased for personal use. However, he has not produced any evidence or mounted a substantive argument to undermine the strong circumstantial evidence of commercial importation relied upon by Mrs Gillespie.
16. The Appellant stated that his job was in jeopardy if the Ford Escort van was not restored to him without payment of the fee. He supplied a letter from his employers in support of his statement. The Appellant, however, has not given an explanation as to why he cannot use the other vehicle ( Peugeot 406 motor car, registration number LJ 02 BRV) registered in his name to travel to work. Further he has not provided information about the distance from his home and his place of work. The Appellant has not convinced us that he will suffer exceptional hardship from the Respondents' decision to offer restoration of the Ford Escort van on payment of a fee in the sum of £1,320.10.
17. We are satisfied that Mrs Gillespie considered all the available evidence including the Appellant's correspondence when conducting her review of the Respondents' decision refusing restoration of the excise goods and offering restoration of the vehicle on payment of a fee. We find that she took account of all relevant matters and disregarded irrelevant matters in reaching her conclusion that the Appellant brought in the excise goods for a commercial purpose. Her conclusions about the Appellant suffering no exceptional hardship and the proportionality of the offer of conditional restoration of the vehicle were firmly based on the facts.
18. We have decided for the reasons set out above that the Respondents' decision of 17 March 2005 not to restore the excise goods and to offer restoration of the Ford Escort van on payment of a fee was reasonably arrived at within the meaning of section 16(4) of the Finance Act 1994. We, therefore, dismiss the Appeal. We make no order for costs.
19. The Appellant or any other person interested in this matter can apply in writing to the Tribunal within 14 days after the date of release of this decision to set aside the decision in accordance with rule 26 (3) of the 1986 Tribunal Rules.

MICHAEL TILDESLEY

CHAIRMAN
Release Date: 27 October 2005

MAN/05/8019