United Kingdom VAT & Duties Tribunals (Excise) Decisions

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Cite as: [2005] UKVAT(Excise) E00931, [2005] UKVAT(Excise) E931

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Colin Williams v Revenue and Customs [2005] UKVAT(Excise) E00931 (08 December 2005)

EO00931

HYDROCARBON OIL DUTY – red diesel found in lorry – assessment made for 10 days' use shown on tachograph – Appellant claimed he had taken delivery the day before – appeal dismissed

LONDON TRIBUNAL CENTRE

COLIN WILLIAMS Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY'S

REVENUE AND CUSTOMS Respondents

Tribunal: DR JOHN F AVERY JONES CBE (Chairman)

GEORGE MILES

Sitting in public in Bristol on 29 November 2005

The Appellant in person

Jonathan Holl, Senior Officer of HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2005

DECISION

Mr Colin Williams appeals against a decision on review in a letter dated 28 February 2005 upholding a decision to issue an assessment to hydrocarbon oil duty but reducing the assessment to £725.44. The Appellant appeared in person and Customs were represented by Mr Jonathan Holl.

We heard evidence from the Appellant and from officers Matthew Holmes, Sarah Llewellyn, Elizabeth Bailey and Steve Preston. We find the following facts:

(1) The Apellant's vehicle, a Renault 420 tractor unit registration number N289 LKX ("the Vehicle") was stopped on 2 December 2004 when it was found to be running on red diesel. The fuel gauge then showed half-full. The Appellant was interviewed by Mr Holmes. The vehicle was seized and although terms were offered for its restoration the Appellant did not accept these. Mr M J Q Rafferty, forensic scientist of LGC Limited, provided a witness statement saying that he had analysed the sample as containing 68 per cent red diesel.

(2) The Appellant said at interview at the time and also to us that he had purchased the vehicle in the middle of November but only taken delivery the day before, 1 December 2004 with three-quarters of a tank of fuel (the two tanks take a total of 600 litres). An undated hand-written receipt for the Vehicle for £1,500 was produced. The police national computer shows the Appellant to have been the keeper of the Vehicle since 15 November 2004. The vehicle operator's licence shows the vehicle to have been added to the licence on 24 November 2004. We consider below whether we accept his evidence.

(3) Mr Holmes' witness statement and his contemporary notebook say that he took 10 used tachographs from the cab of the Vehicle on 2 December 2004 at about 11.30 am after the Appellant had left. They show the Appellant as the user from 22 November 2004 to 2 December 2004 with consecutive numbering 7918703-9 from 22 to 29 November 2004, then numbers 7918603-5 from 30 November 2004 to 2 December 2004. The Appellant denies that these contain his handwriting except that the last two could be his. He says that the others are forgeries. He points to the line where the vehicle is not moving being in slightly different places in relation to the base line suggesting that they are not taken from the same tachograph. At the hearing the Appellant produced a tachograph for another vehicle, P601 CEW, dated 23 November 2004 with his name and overlapping time of use to the one for the Vehicle on the same day. Vehicle P601 CEW was not mentioned to Mr Holmes at the interview although it was added to his operator's licence on 27 October 2004. We shall consider below whether we accept this evidence.

(4) The Appellant also produced a receipt from the vehicle licensing authority dated 29 November 2004 for the Vehicle. He was unable to produce any evidence that he was the person who paid for it. Since it was the day before he says he took delivery we are puzzled that he should produce it to support his case

(5) Between 22 November 2004 and 2 December 2005, on the basis of the tachographs the Vehicle travelled 4003 kms and, on the basis of an agreed 7 miles to the gallon, 1615 litres of fuel were used. From this, Mrs Bailey deducted 30 litres (later corrected on review to gallons) for which she accepted the Appellant's evidence that he had transferred from his previous vehicle P834 RWR. This "mileage" meant that the Appellant must have filled up the Vehicle during this period. The assessment was based on the use of red diesel throughout this period.

Section 12 of the Hydrocarbon Oil Duties Act 1979 provides that rebated oil (Red diesel) is not permitted to be used as fuel for a road vehicle. Section 13(1A) provides:

"Where oil is used, or taken into a vehicle, in contravention of section 12(2) above the Commissioners may—

(a) assess an amount equal to the rebate on like oil at the fate in force at the time of the contravention as being excise duty due from any person who used the oil or was liable for the oil being taken into the road vehicle, and

(b) notify him or his representative accordingly."

Section 13(7) provides:

"For the purposes of this section a person is liable for heavy oil being taken into a road vehicle in contravention of section 12(2) above if his is at the time the person having charge of the vehicle or is its owner…"

The appeal is an ordinary appeal against the review decision, not a review of an ancillary matter within section 16(4) of the Finance Act 1994. The Tribunal's power under section 16(5) includes power to quash or vary any decision and to substitute its own decision for any decision quashed on appeal.

The Appellant claims to have taken delivery of the Vehicle on 1 December 2004 in which case the 10 tachographs with his name on them cannot relate to his use of the Vehicle. We find on the balance of probabilities that the 10 tachographs do relate to his use, and that he did not take delivery of the Vehicle on 1 December 2004. They were found in the cab. The writing on them all looks similar to the ones on 1 and 2 December 2004 which he accepts could be his. These all have the slope of the writing to the left and a distinctive C in Colin, and are completely different from the writing on the tachograph for P601 CEW on 23 November 2004, which slopes to the right and the C in Colin is different. We note the Appellant's contention that the line is in different positions on each tachograph when the vehicle is not moving but without any expert evidence about tachographs we are unable to conclude that this means that they were produced on different machines, particularly as they were all found together in the cab of his Vehicle and all contain the Vehicle's registration number. The change in the sequence of numbering on 30 November 2004 does not correspond to his stated taking over of the vehicle and so we do not consider this to be relevant. We accept that Mr Holmes discovered them in the Vehicle on 2 December 2005 and we do not consider it probable that anyone could have forged them. In our view the 10 tachographs are genuine and the one for P601 CEW is more likely to be the forgery, but it is not necessary for us to decide if it is a forgery. It follows that the Appellant was the user of the Vehicle from 22 November 2004, the assessment is correctly calculated, and the decision on review was correct. We considered whether the fact that 68 per cent of the fuel was red diesel should lead to a reduction but in the absence of any evidence of the purchase of white diesel we do not make any adjustment on account of this.

Accordingly we dismiss the appeal.

JOHN F AVERY JONES

CHAIRMAN

RELEASE DATE: 8 December 2005

LON/05/8040