United Kingdom VAT & Duties Tribunals (Excise) Decisions

Bennett v Revenue & Customs [2006] UKVAT(Excise) E00979 (14 August 2006)

E00979

EXCISE DUTIES – Seizure of car and excise goods on importation into United Kingdom – refusal to restore goods and car upheld on review – whether decision on review reasonable – yes – appeal dismissed

MANCHESTER TRIBUNAL CENTRE

GLEN BENNETT Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Colin Bishopp (Chairman)

Jon Denny

Sitting in public in Manchester on 7 July 2006

The Appellant in person

Jennifer Blewitt, counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2006

DECISION

1. This is an appeal by Glen Bennett against the refusal of the Respondents, upheld on a review undertaken by Raymond Brenton and described in a letter of 10 April 2006, to restore to Mr Bennett various excise goods and a Citroen Xantia car which had been seized from him on 21 January 2006. On that day Mr Bennett arrived at Dover from France with two travelling companions. They were stopped by Customs officers who concluded that the excise goods in Mr Bennett's car had been brought into the United Kingdom by the travellers for commercial purposes. They seized the goods and the car.
2. Before us, Mr Bennett represented himself and we heard evidence from him and from one of his travelling companions, Andrew Eades. The Respondents were represented by Jennifer Blewitt of counsel. We heard evidence from Mr Brenton and Miss Blewitt also produced a bundle of relevant documents.
3. It appears to be undisputed that Mr Bennett, Mr Eades and their other companion, Hector Walters, travelled from their homes in Sheffield to Dover in Mr Bennett's car, took a ferry to France, then travelled to Adinkerke in Belgium to buy tobacco goods, returning to Calais where they bought some alcoholic drinks, and that they then took a return ferry to Dover, where they were stopped. The excise goods found in the car consisted of 18 kgs of hand rolling tobacco, 84 litres of beer, nine litres of wine and two litres of spirits.
4. The first issue before us was the manner in which Mr Bennett and his companions were spoken to by the officers who intercepted them at Dover. Mr Bennett and Mr Eades both described the officers' attitude as aggressive and hostile, and they said that the conversation between the officers on the one hand and them on the other was heated from the beginning. Mr Bennett challenged the accuracy of the entries made by the officers in their notebooks about what he and his companions had said. However, he has himself written at the end of the notes of the initial discussions, before the three travellers were interviewed separately, "I agree with the officer's account", after which he added his name and signature. At the end of the note of his individual interview, he wrote "I have read the above notes and it's a true and accurate account, nothing permitted (sic)". Again, he has written his name and signature. Mr Eades and Mr Walters have, likewise, signed the notes of their own individual interviews.
5. Mr Bennett could not explain to our satisfaction why he would have agreed, not once but twice, to sign notes of discussions as a true record if that were not the case. He did say that he thought it was just routine, and that once he had signed the notebooks he and his companions would be allowed to leave, with the car. We find that impossible to accept. If, as Mr Bennett insisted, the interview was heated to the extent that he had asked that a solicitor attend, it is difficult, if not impossible, to understand why he should sign the notes, which he now says are inaccurate in a number of respects. Though the notes do not claim to be a verbatim record of the discussions, we are satisfied that they amount to an accurate summary. We have concluded that Mr Bennett simply regrets some of what he said at Dover.
6. In essence, the dispute between Mr Bennett and the Respondents is a simple one. Mr Bennett maintains that he and his companions were bringing in excise goods for their own use, and that the goods and the car were seized improperly; the Respondents maintain that they were fully justified in reaching the conclusion that this was a commercial importation and that the goods and car were liable to seizure and, thereafter, forfeiture. As we shall explain, this tribunal's jurisdiction is somewhat limited but we will deal with the issue nevertheless.
7. Mr Bennett's evidence was that he and his friends had been intercepted by a Customs officer at Dover, before they had embarked on the ferry to France. We did not understand the purpose of the interception, but Mr Bennett told us that he asked the officer what goods they might buy and was told (correctly) that they could buy as much as they liked, and bring it back to the United Kingdom without payment of further duty, provided it was for their own use. They had, he said, relied on that advice, and each of them bought no more than he intended to consume personally. According to the officers' accounts of the later interviews, as recorded in their notebooks, they detected a number of (in our view, minor) discrepancies about the manner in which the travellers had paid for their trip and their goods and some more important discrepancies between their respective claims to be smokers and the other available evidence. Most important of all, however, was the fact that the officers concluded that the travellers had attempted to conceal the true quantity of tobacco which they had bought. When first stopped, they are recorded to have said that they had bought only drink, but after some further questioning, they said that they had also bought some tobacco, 40 pouches each. In fact, they had altogether 360 pouches. Some of the tobacco was found in a wine box.
8. Mr Bennett's explanation to us was that the car was heavily laden, to the extent that the boxes of tobacco, which had been supplied by the shop from which they bought it, were obscuring his vision through the rear of the car. In order to provide a clear view, the tobacco had been repacked in wine boxes. We find that a wholly implausible explanation. Although the dimensions of a box of tobacco and those of a wine box are not identical, there is not a great deal to choose between them and we do not understand how taking tobacco out of one box and putting it in another would have made any significant difference to the distribution of the load in the car. Had visibility truly been a problem, the obvious course would be to take the pouches from the box and redistribute them in the car, without the box. We think the officers were probably right to conclude that there had been concealment, an indication (though no more) that the travellers were attempting to disguise a commercial importation.
9. However, the test before this tribunal is not whether the goods in question were brought into this country for the travellers' own consumption, but whether the decision which Mr Brenton made on his review of the refusal to restore the goods and the car is one at which he could reasonably arrive. That is the only jurisdiction conferred on this tribunal by section 16(4) of the Finance Act 1994. This is not a case in which Mr Bennett has been deprived, for some reason, of the opportunity of challenging the seizure (and raising the argument that the tobacco was for his and his companions' own use) by causing the Respondents to bring condemnation proceedings in the magistrates' court. In fact, he did just that but later asked that the proceedings should be withdrawn because, he told us, he could not risk having an order for costs made against him, which he had been warned was a possibility. The Court of Appeal has made it clear that this tribunal can deal with the issue of "own use" and the lawfulness of the seizure only in exceptional circumstances, where the person concerned was effectively deprived of the opportunity of raising the matter in the correct court, namely in the magistrates' court. We are quite willing to accept that Mr Bennett did abandon those proceedings because of his fear of the costs, but it is impossible for us to regard his doing so as an exceptional circumstance of the type which the Court of Appeal had in mind. Exceptional circumstances might arise when the person concerned was, for example, in hospital or abroad or for some other reason outside his control has been prevented from giving notice challenging the seizure within time, or has been misled by the Respondents in a material way. That is not the case here. Mr Bennett did in fact require condemnation proceedings to be commenced. He has not, therefore, been prevented by some circumstance outside his own control from challenging the seizure.
10. Mr Brenton's letter indicates that he considered all of the evidence available to him – that is, the officers' notebooks, documentation generated when the vehicle and goods were seized, and Mr Bennett's and his companions' correspondence with the Respondents – when making his decision. He came to the conclusion, as his letter shows, that this was an importation of tobacco goods for resale at a profit. He added that in his view the probability was that Mr Bennett was himself importing all of the tobacco and that Mr Eades and Mr Walters had travelled in order to conceal the fact that all of the goods belonged to Mr Bennett. He had paid for them on the basis, he claimed, that Mr Eades and Mr Walters (who at the time were unemployed and had little money) would reimburse him the cost of their own shares when they could, a claim which Mr Brenton found implausible (as do we). He then went on to consider whether either the goods or the car should be restored but, applying what had been said by the Court of Appeal in Lindsay v Commissioners of Customs and Excise [2002] STC 588, namely that the Respondents should not normally restore cars used for illicit commercial importations, he concluded that there were no grounds upon which the car or the goods should be restored, even on terms. The Commissioners would, ordinarily, restore a car on terms, such as payment of the duty sought to be evaded, in a case of commercial importation of a small quantity, but, in Mr Brenton's view, 18 kilograms did not qualify as a small quantity. He also considered, according to his letter, whether Mr Bennett was suffering unusual hardship by reason of the loss of his vehicle and he came to the conclusion, particularly since it appeared that he had access to another car, that he was suffering no more than the inconvenience that would be suffered by anyone deprived of his car. Mr Bennett did tell us that the car identified by Mr Brenton had been registered in his name, so that he could insure it, but he had it on no more than a short term loan from a relative. We do not think that fact undermines Mr Brenton's conclusion.
11. As we have already mentioned, the question for us is whether Mr Brenton could reasonably have arrived at his decision. Only if we are satisfied that he could not may we allow the appeal. In our view it is quite impossible to say that Mr Brenton's decision was unreasonable. We have had the benefit of hearing Mr Bennett and Mr Eades and, were we making the decision ourselves, we might come to different conclusions from those reached by Mr Brenton on a number of matters of detail. It is, however, impossible to say that his conclusion that this was an importation of goods destined for resale at a profit is perverse, and unsupported by the available evidence. Nor can it be said that his decision that, in consequence, neither the goods nor the vehicle should be restored was one at which he could not have reasonably have arrived.
12. In those circumstances, the appeal must be dismissed.

COLIN BISHOPP

CHAIRMAN
Release Date: 14 August 2006

MAN/068015