United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2006/E00950.html
Cite as: [2006] UKVAT(Excise) E950, [2006] UKVAT(Excise) E00950

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Trevor Daggitt v Revenue & Customs [2006] UKVAT(Excise) E00950 (21 April 2006)

8078

EXCISE DUTY – Tobacco products imported, seized by the Commissioners and deemed to have been duly condemned as forfeited under para. 5, Sch. 3, CEMA – Appellant wishing to argue on an appeal to the Tribunal against the Commissioners' refusal to restore the goods that they had been purchased and imported for his own use – Commissioners objecting to the Tribunal hearing argument on the "own use" issue on the basis of abuse of process in reliance on Gascoyne v Commissioners of Customs and Excise [2005] Ch 215 and Commissioners of Revenue and Customs v Albert Charles Smith (17 November 2005) – Guidance in CRC v Albert Charles Smith followed and no abuse found – argument on the "own use" issue accordingly entertained – found on the evidence that the excise goods had been imported for the Appellant's own use – appeal allowed and further review directed

LONDON TRIBUNAL CENTRE

TREVOR DAGGITT Appellant

- and -

THE COMMISSIONERS

FOR HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: JOHN WALTERS QC (Chairman)

KEITH DUGDALE FCA

MRS. CAROLINE DE ALBUQUERQUE

Sitting in public in Lowestoft on 1 February 2006

The Appellant appeared in person

Sarabjit Singh, Counsel, instructed by the Solicitor for HM Revenue & Customs, appeared on behalf of the Respondents

© CROWN COPYRIGHT 2006


 


DECISION

1. Mr. Daggitt ("the Appellant") appeals against the decision of the Commissioners on a re-review, dated 20 January 2003, to refuse restoration of excise goods seized from the Appellant as liable to forfeiture under sections 139 and 141 of the Customs and Excise Management Act 1979 ("CEMA").
2. The Appellant was stopped by Customs Officers at Dover Eastern Docks on 10 December 2001. He was travelling in a Peugeot motor car, which was being driven by a Mr. J. A. Treloar. Another passenger, a Ms. Y. V. Szwed was travelling in the car, as well as the Appellant.
3. The excise goods seized from the Appellant were 11 kilograms of Samson tobacco, and 3,800 cigarettes – 1,200 SuperKings Black, 1,000 SuperKings and 1,600 Lambert and Butler.
4. By a letter dated 31 December 2001, the Appellant wrote to the Commissioners (The Queen's Warehouse) stating that he had bought the goods for his own use. The text of the letter was as follows:

"WITHOUT PREJUDICE

On 10 December 2001, myself and friends returned from Calais on Sea France vessel Cezanne and the goods purchased were seized together with my friend's vehicle by Customs Officers at Dover.

It is my opinion that the seizure was incorrect as the goods attributed to myself on the seizure notice were for my own use. I fully intended to purchase sufficient tobacco and cigarettes to last me and my wife for at least 12 months.

I am perfectly willing to document the goods as I use them and for them to be vetted periodically if necessary by Customs Officials.

I insist that the goods are intended for my own use as defined by Notice 1, and that EU duty is paid on the goods. They were NOT intended for commercial use.

Please note also that due to a sudden change in my personal circumstances I shall be moving to Spain to live in late January 2002 for health reasons and that the goods would thus be exported back into the EU for my use there.

I am requesting that the above circumstances be taken into account and that the goods be returned to me or made available for my collection as soon as possible under the usual restoration procedure."

5. The Appellant wrote to the Commissioners (the Post-Seizure Unit) again on 14 January 2002, stating that he no longer challenged the seizure but sought restoration of the seized goods. The text of the letter was as follows:

"WITHOUT PREJUDICE

Following my telephone conversation with your department earlier today regarding having no correspondence from you relating to the above case, or any acknowledgement of my letter of 31 December 2001.

I am enclosing a copy of my letter but I have withdrawn any reference to an appeal, preferring to rely on the restoration procedure as you outlined to me on the telephone. This information was not made available to myself or my friends previously, as we had been given to understand that an appeal was the only option open to us to retrieve our property. I have discussed the matter with my friends and I have expressed to them my faith in the fairness of a tribunal and consequently wish to withdraw any reference to an appeal and rely on the fact that we are genuine shoppers caught up in an unfortunate, but understandable, error of judgment, and that a fair resolution would prove justly to be in our favour."

6. In these circumstances the goods were "deemed to have been duly condemned as forfeited" pursuant to paragraph 5, Schedule 3, CEMA.
7. On 6 February 2002, the Commissioners (the post-Seizure Unit) wrote to the Appellant refusing his request for restoration of the goods. The Appellant wrote to the Commissioners (the Review Officer) on 5 March 2002 requesting a review of that decision (and also of the decision not to restore Mr. Treloar's vehicle – that decision is not relevant to this appeal). A review was carried out, the substance of which was contained in a letter dated 23 April 2002 sent by the Review Officer (Mr. P.A. Devlin) to the Appellant. The review letter dealt only with the Appellant's excise goods, and refused restoration.
8. The Appellant appealed to the Tribunal. The appeal was allocated the reference number LON/2002/8272. In that appeal, the Commissioners apparently applied to the Tribunal for a direction that there be a re-review of the decision to refuse restoration of the goods.
9. The Appellant wrote to the Tribunal on 8 November 2002 saying that he had no objection to a re-review and relating certain matters to which he asked that attention should be given on the re-review. The Tribunal (Chairman: Mr. Wallace) directed a re-review (to take into account the Appellant's letter dated 8 November 2002) by an officer previously unconnected to the case.
10. The re-review was carried out by another Review Officer (Mr. D.A. Leavesley). It confirmed the decision that the Appellant's excise goods would not be offered for restoration. It was communicated to the Appellant in Officer Leavesley's letter dated 20 January 2003, which is the decision letter against which the Appellant has brought this appeal.

Preliminary jurisdictional point

11. The basis of the Appellant's case is that the goods should be restored by the Commissioners because they were imported by him for his own use. As they now regularly submit in restoration appeals of this type, the Commissioners, through Mr. Singh, say that this Tribunal has no jurisdiction to make a finding of fact that the Appellant imported the goods for his own use. Mr. Singh relies on a passage from the judgment of Buxton LJ in Gascoyne v Commissioners of Customs and Excise [2005] Ch 215, and the gloss on that passage provided by Lewison J in the later case of Commissioners of Revenue and Customs v Albert Charles Smith (17 November 2005).
12. The relevant passage from the judgment of Buxton LJ is as follows:

"55. In my view … in a case where the deeming provisions under paragraph 5 [of Schedule 3 to CEMA] are applied, the tribunal can reopen those issues [i.e. the matters that are deemed to have been decided against him because of paragraph 5, viz: the "own use" issue]: though the tribunal will always have very well in mind considerations of, or similar to, abuse of process in considering whether such issues should in fact be ventilated before it.

The mere fact that the applicant has not applied to the commissioners, and therefore there have been no condemnation proceedings, would not, in my view, be enough. But, in my judgment, it goes too far to say that the deeming provisions have always, in every case, got to be paramount."

13. Mr. Singh says that, applying this guidance in the circumstances of this appeal, the Tribunal cannot consider the Appellant's claim that he imported the goods for his own use, because the goods are deemed to be condemned under paragraph 5, Schedule 3, CEMA. He submits that the Appellant's letters dated 31 December 2001 and 14 January 2002 (set out above) show that the Appellant elected not to give notice of his claim (that the goods were not liable to forfeiture – see paragraph 3, Schedule 3, CEMA) or withdrew a claim if one was made, and, instead, chose to bring an appeal against refusal of restoration to this Tribunal. Mr. Singh submits that in these circumstances the guidance in Gascoyne indicates that the Tribunal should not consider the "own use" issue in this appeal.
14. The gloss on Buxton LJ's words given by Lewison J in the Albert Charles Smith case is as follows:

"20. Just pausing there, what Lord Justice Buxton is saying is not enough is the mere fact that the applicant has not applied to the Commissioners, requiring them to invoke condemnation proceedings. Not enough for what? Well, clearly, in my view, not enough to enable the Tribunal to reopen the question or, indeed, open the question for the first time. There must, therefore, be something more than a failure on the part of the applicant to invoke condemnation proceedings before the Tribunal is empowered to question the legality of the forfeiture.

21. This is borne out by a subsequent passage in Lord Justice Buxton's judgment. He refers to paragraph 66 of the first instance Judge's decision, in which that Judge said that the applicant was able to argue against the validity of a seizure on review under Sections 14 and 15 of the 1994 Act and on an appeal to the tribunal under Section 16. Commenting on that, in paragraph 76 of his judgment, Lord Justice Buxton says this, "What, however, about paragraph 66? In the light of Gora's case, what the Judge says there is not correct, or at least not unequivocally correct. That is because failure to give a paragraph 3 notice will, in most cases, preclude subsequent challenge to the lawfulness of the procedure.

22. It is, in my judgment, clear from that passage that in the run of the mill case where there has been a failure to give a paragraph 3 notice invoking the condemnation proceedings the deeming provision will operate against the applicant in any subsequent appeal to the Tribunal. The Tribunal's function, therefore, is analogous to a sentencing court once a defendant has been convicted. No matter that the defendant still protests his innocence of the charge against him, the function of a sentencing court is to accept mitigation but not to question the original conviction.

23. Lord Justice Buxton's reference to abuse of process or to considerations analogous to abuse of process are, in my view, references to the well-known principle that it may be an abuse of process to raise in one tribunal matters that could and should have been raised in another. So the relevant questions will always be, first, could the applicant have raised the question of lawfulness of forfeiture in other proceedings and, if the answer to that question is yes, why did he not do so? In the light of his reasons for not raising the matter in condemnation proceedings the Tribunal can then answer the question should he have done so and if they answer that question 'yes', then it will be, in most cases, an abuse of process for him to raise the question before the Tribunal."

15. Mr. Singh submits that the Tribunal in this case must accept that the goods were imported for a commercial purpose (that being the basis of the deemed forfeiture) and, in the light of this "deemed fact" (words quoted from paragraph 7 of Mr. Singh's Skeleton Argument) must turn its attention to the proportionality of the decision not to restore the goods. He adds that if the Tribunal decides that it has jurisdiction to consider the "own use" issue, then we should make a formal record that we have considered the question of abuse of process in accordance with paragraph 55 of the decision in Gascoyne and state why we believe there are exceptional circumstances in this case which permit us to consider the issue of "own use".
16. We apply Lewison J's guidance as it appears at paragraph [23] of his judgment in Albert Charles Smith. It appears that the Appellant could indeed have raised the question of lawfulness of forfeiture in other proceedings, viz: condemnation proceedings, and so we consider why he did not do so.
17. The starting point is the Appellant's letter (quoted above) to the Commissioners (the Post-Seizure Unit) of 14 January 2002, in which he stated that he no longer challenged the seizure but sought restoration of the seized goods. He refers to a "telephone conversation with your department earlier today" and goes on to "withdraw any reference to an appeal, preferring to rely on the restoration procedure as you outlined to me on the telephone".
18. The Appellant gave evidence about this telephone conversation. We were not told the name of the individual to whom he spoke and there was no other evidence as to what was said in the conversation. The Appellant told us (as is clear from his letter of 14 January 2002), that he telephoned because he had had no response to the letter dated 31 December 2001 (also quoted above). He knew he had to give notice of a claim to contest the seizure within one month of the seizure (this had been explained in the notes on the back of the Seizure Information sheet which had been given to him at the time of the seizure). The letter dated 31 December 2001 had been written within that time limit with the intent of appealing against the seizure, to which the words used, viz: "the usual restoration procedure" had been intended to refer.
19. In the telephone conversation the Appellant had been told that his letter dated 31 December 2001 had not been received and that it was then too late to appeal. The Appellant queried the non-receipt of his letter, because, so he said, Mr. Treloar and Ms. Szwed had received responses to his letter. The response the Appellant received to this was that it would not matter, because the Appellant could go to the VAT Tribunal, and the Appellant was told that that was the best course to take. He took that advice, and his letter dated 14 January 2002 was the result.
20. It is clear to us from this evidence, which was not seriously challenged, that the Appellant was advised, however informally, by someone in the Commissioners' organisation who had responsibility for dealing with telephone calls in these circumstances, to appeal to this Tribunal as, in effect, a better alternative to contesting the seizure. Also, the Appellant was not given to understand that there was any suggestion that he would only be able to argue the "own use" issue if he contested the seizure, and, specifically, that he would not be able to argue the "own use" issue on an appeal to this Tribunal.
21. If he had been made aware of this serious disadvantage in appealing to this Tribunal, there is every reason to expect that he would have followed up the alleged non-receipt by the Commissioners of his letter dated 31 December 2001, which is, on its terms, a notice of claim within paragraph 3 of Schedule 3 to CEMA.
22. In these circumstances we refer again to Lewison J's guidance and consider whether the Appellant should have raised the matter in condemnation proceedings. We consider he was led by the Commissioners' staff to abandon contesting the seizure and instead to bring an appeal to this Tribunal. We therefore hold that it would not be an abuse of our process, or any analogous abuse, for him to argue the "own use" issue in this appeal. We therefore reject the Commissioners' preliminary jurisdictional argument.

The "own use" issue

23. The Appellant submits that the goods seized were intended for his own use. At this point it is necessary to relate the facts relative to this issue as we find them. Oral evidence was received from the Appellant and from the Reviewing Officer who conducted the re-review, which is the subject of the appeal, Officer David Arthur Leavesley. An agreed bundle of documents was in evidence.
24. The Appellant and his two friends, Mr. Treloar and his (Mr. Treloar's) partner, Ms. Szwed, travelled from the north of England to France on 10 December 2001 on a shopping trip. It was a difficult journey. They crossed to France late, having missed three ferries. In the event they abandoned the idea of a trip to Calais itself and returned to the ferry. The Appellant had bought some excise goods on the ferry on the journey out to France and he bought more excise goods on the ferry on the return journey from France. The party disembarked in Dover and were flagged down by a Customs officer (Officer Chantler, whose Witness Statement was in evidence) in the port area.
25. The three passengers were questioned initially as to what excise goods they were importing. When Officer Chantler asked the Appellant what was goods were his, he replied "1,000 SuperKings Menthol and some tobacco". Officer Chantler asked the travellers whether they had receipts for the goods. The Appellant handed over receipts for his goods.
26. Officer Chantler asked Mr. Treloar to open the boot of the vehicle and the Appellant was asked to separate his goods from those of the other travellers. The Appellant segregated 1,000 SuperKings Menthol cigarettes, 1,200 SuperKings Black and 6 kilograms of hand rolling tobacco. He probably also segregated 1,600 Lambert and Butler cigarettes.
27. The three travellers were interviewed by officers separately. Officer Peter John West (whose Witness Statement was in evidence) interviewed the Appellant. He asked the Appellant what goods he had purchased and the Appellant replied, "Everything on those receipts, tobacco, wine and there's some cigarettes". The receipts apparently showed 11 kilograms of Samson hand rolling tobacco, 1,000 Menthol SuperKings cigarettes, 1,600 Lambert and Butler cigarettes and 800 SuperKings Black cigarettes. This does not accord with the Seizure Information sheet, which shows a seizure of 1,200 SuperKings Black cigarettes from the Appellant. This discrepancy was not explained to the Tribunal, nor were we shown the receipts, or copies of them. The total of the prices charged as recorded on the receipts was £987.50.
28. The Appellant explained to Officer West that the goods were all for his own use, except the Menthol SuperKings, which were for his partner, who had fallen ill that morning.
29. Officer West put it to the Appellant that he had not separated the 11 kilograms of Samson hand rolling tobacco, when Officer Chantler had asked him to segregate his goods, and asked him why he had not. The Appellant's answer at interview and his explanation given in evidence to the Tribunal was the same: although he knew he had bought Samson hand rolling tobacco, he did not know how much he had bought. He had simply filled the basket at the shop – he knew how much he had to spend, he was not concentrating specifically on the quantity of goods which he bought. Some of the Samson hand rolling tobacco had not been immediately visible when the goods were emptied from the boot of the car. It had been packed in a holdall by Ms. Szwed. That is why the Appellant had not segregated all the Samson hand rolling tobacco which he had imported, at Officer Chantler's request. We record that there was no evidence that any excise goods had been concealed in the vehicle.
30. Both Officer Devlin, who conducted the first review, and Officer Leavesley, who conducted the re-review, considered that the fact that the Appellant was unable to be sure of the quantity of Samson hand rolling tobacco that he had bought only a short time before and then imported, was indicative of the importation not being for the Appellant's own use.
31. When questioned by Officer West, the Appellant had said that he hoped the excise goods would last him "at least 12 months". He also told the officer that his rate of consumption of tobacco goods was about two pouches of tobacco and perhaps 4 to 5 packets of cigarettes a week. The importation of 11 kilograms of tobacco amounted to 220 pouches, which, at that rate of consumption, would have lasted the Appellant 110 weeks, or over two years. Officer Leavesley in his re-review letter stated that in view of the fact that hand rolling tobacco has a limited shelf life, anything up to half of the tobacco imported would dry out and be too stale to smoke in the period of 12 months mentioned. This was considered by Officer Leavesley to be an indication that the Appellant had imported more hand rolling tobacco than was required for his own use. We record here that the Appellant said in interview to Officer West, and has maintained in evidence, that the SuperKings Menthol cigarettes were for his partner, not himself.
32. When questioned by Officer West about his financial circumstances, the Appellant acknowledged that he had spent nearly £1,000, which would be funded from his current account at the bank, which was about £800 overdrawn "at the moment". He told the officer that his income consisted of a pension and disability benefit, mentioning a pension of £379 a month and benefit of £279 a month. When asked to state his outgoings, he said £276 a month on mortgage and about £122 a month on normal bills. He told the officer that he had spent so much money on tobacco "so it will last me, obviously I'm trying to save money on the prices" available on the ferry.
33. Officer Leavesley considered that the amount spent also indicated that the Appellant had imported much more than was needed for his own use. He said in the re-review letter that "you purchased goods that were well beyond your means at a time when your financial position was in a parlous state. As Mr. Devlin [the Review Officer who conducted the first review] stated in his letter, the expenditure equates to almost four months of your declared income and left you with nothing for normal commitments." Officer Leavesley went on: "The only reasonable and logical conclusion that I can come to is that you have imported far more than your own needs and as such any residue could be used in a commercial manner to relieve the unhealthy balance in your bank account".
34. The Appellant explained in correspondence on 8 November 2002 (the letter Mr. Wallace directed should be taken into account on the re-review) and 12 February 2003 that the reason his bank account was overdrawn £800 was that he had recently paid for home improvements and that before his trip to France he had received an offer of an increase to his mortgage of £16,000 which would be payable in mid-December (2001). In evidence he said that when he made the trip to France, the sale of his house had recently fallen through and he was "feeling fed up". He had some money on hand which was left over from the finance of a lorry and he was proposing to move to Spain. The £16,000 advance was stated in his letter dated 12 February 2003 to the Tribunal, which was in evidence, as being "to finance the purchase of a property in Spain". He also said in evidence that £20,000 came into his bank account on the remortgage, that when the sale had fallen through he and his partner had remortgaged their house, but that soon afterwards they in fact sold it and on 31 January 2002 moved to Spain.
35. The details of these transactions were hazy, even after cross-examination, but the Tribunal was shown a bank statement for the Appellant's account at Lloyds TSB Bank, with a credit entry in the amount of £20,196 on 19 December 2001, which converted a debit balance of £958.67 into a credit balance of £19,237.33.
36. Officer Leavesley's evidence about this was that he understood that the Appellant specifically required the remortgage funds for the purchase of a home in Spain, and in any event they were not available when the tobacco goods were purchased.
37. So much for the facts. The Appellant's submissions before us, which he had consistently maintained in the correspondence over a long period leading up to the appeal, were that the tobacco goods had been purchased for his own use (except for the SuperKings Menthol cigarettes which were for his partner). The confusion over the segregation of the goods was simply explained by the fact that he had intended to, and had, purchased tobacco goods to a budget of £1,000, not being concerned about the quantity of hand rolling tobacco purchased, and that he had been unable to identify all the hand rolling tobacco, when asked to segregate his goods, because some of it (5 kilograms) had been packed (unbeknown to him) in a holdall, but that he had been perfectly straightforward in showing the officer his receipts (which included 11 kilograms of hand rolling tobacco) and agreeing that he had purchased all the items recorded on them. He said there was nothing in the point that he had bought too much for his reasonable consumption within the shelf life of the tobacco, adding that stale tobacco could, as was well known, be revived with a lettuce leaf. He said that the amount spent was not unreasonable in relation to his own consumption, when viewed against the fact that he knew that remortgage finance was shortly going to be paid into his bank account (the tobacco had anyway been bought on a credit card).
38. Mr. Singh's submissions for the Commissioners were that the Appellant's failure initially to segregate all his goods was indicative that they had been acquired for a commercial purpose. If he was indeed intending to smoke all the imported products, Mr. Singh suggested that he would have known precisely what he had bought: his not knowing what he had bought suggested that he did not care what it was, because he was going to sell it on. The inconsistency between his stated consumption rate of two pouches of hand rolling tobacco per week and his belief that the tobacco would last at least 12 months – when 11 kilograms of hand rolling tobacco smoked at the rate of 2 pouches (0.1 kilogram) per week would have lasted over two years – suggested, in Mr. Singh's submission, that the Appellant was not truly intending to smoke the tobacco himself. Mr. Singh submitted that the fact that the purchases were of an amount equivalent to the Appellant's net income for four months was indicative that the purchase was for the purpose of commercial sale. The reference to the increased mortgage payment of £16,000 should be discounted because the Appellant had made no mention of it to the interviewing officer and it was therefore unlikely that the purchase of the goods was funded in this manner.
39. On all these points we favour the Appellant's submissions and find that the excise goods were indeed purchased for his own use (and, in the case of the SuperKings Menthol cigarettes, for the use of his partner).
40. The Appellant appeared to us to be a truthful witness. We find that he purchased tobacco goods to a budget of £1,000, not being concerned about the quantity of hand rolling tobacco purchased, and that he had been unable to identify all the hand rolling tobacco, when asked to segregate his goods, because some of it (5 kilograms) had been packed (unbeknown to him) in a holdall. He was perfectly straightforward in showing the officer his receipts (which included 11 kilograms of hand rolling tobacco) and agreeing that he had purchased all the items recorded on them. We discount the point that he would not have bought so much hand rolling tobacco for his own use because of its limited shelf life. No precise evidence as to the shelf life of hand rolling tobacco was led, and we accept the Appellant's explanation that he would have been able to use all the tobacco himself. We find that the amount spent by the Appellant was not unreasonable given his financial position, and taking into account the remortgage finance which we find he knew at the time (10 December 2001) would shortly be credited to his account. We note in relation to the fact that he did not tell Officer West about the remortgage finance, that he was not asked a direct question by him which would have elicited that information.
41. In the result, we find that the decision not to restore the Appellant's goods was unreasonable because they had been purchased for his own use. The decision was also disproportionate, and cannot be justified by the Commissioners' requirement to ensure compliance with UK revenue law and protect the revenue.
42. We allow the appeal and direct, pursuant to section 16(4)(b) of the Finance Act 1994 that the Commissioners shall, within 28 days of the release of this Decision, conduct a further review of the decision not to restore the Appellant's excise goods to him, such review to be personally conducted by a review officer who has not hitherto been involved in this case and to take into account the findings made in this Decision. If, as we expect, restoration of the goods in specie is physically impossible, the review will take into account the question of whether the Commissioners will offer restoration in the form of a compensatory payment, and the reasonableness of any such payment (see: William Leonard Powell v HM Revenue and Customs Chairman: Theodore Wallace, E00900, release date: 18 August 2005).
43. We also direct the Commissioners to pay to the Appellant within 28 days of the release of this Decision the sum of £100 on account of his costs of and incidental to and consequent upon the appeal (see: rule 29(1)(b) of the VAT Tribunals Rules 1986). We record that that amount was agreed by Mr. Singh at the hearing, on instructions, to be reasonable, in the event that we decided to award costs to the Appellant.

JOHN WALTERS QC

CHAIRMAN

RELEASED: 21 April 2006

LON/03/8078