United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2006/E00982.html
Cite as: [2006] UKVAT(Excise) E982, [2006] UKVAT(Excise) E00982

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Ronald Levell v Revenue & Customs [2006] UKVAT(Excise) E00982 (23 August 2006)

E00982

EXCISE DUTY –restoration of goods – appellant claiming restoration on basis he had not received documents normally issued by Customs but not required by statute – not a ground for a further review in the circumstances.

MANCHESTER TRIBUNAL CENTRE

RONALD LEVELL Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Richard Barlow (Chairman)

Peter Whitehead

Sitting in public in Manchester on 27 June 2006

For the Appellant: Mr Geroge Ellison of counsel instructed by Haworth and Gallagher, solicitors

For the Respondents: Ms Jennifer Blewitt of counsel instructed by the general counsel and solicitor for the Revenue and Customs

© CROWN COPYRIGHT 2006


 


DECISION

1. Mr Ronald Levell appeals against a review decision dated 29 December 2005 by which the respondents' predecessors (the Commissioners of Customs and Excise) refused to restore to him 4,200 cigarettes and 6 kilograms of hand rolling tobacco seized from him at Liverpool Airport on 24 February 2005.
2. Mr Levell is the only witness who has given evidence in this appeal so far.
3. The case was listed for only half a day and there was insufficient time to deal with all the issues that might have arisen.
4. This decision is a decision about the appellant's contention that the appeal should be allowed and a further review should be ordered on the grounds that the respondents' officers did not carry out the correct procedure in respect of seizure and notification to the appellant of his rights. There was insufficient time to deal with any other matters at the hearing and the respondents would have sought an adjournment to call witnesses had those other issues been considered.
5. It was agreed by counsel that we should issue a decision about a preliminary point, namely whether failures on the part of the respondents to carry out the correct procedures at the airport and under their complaints procedures would afford a ground for allowing the appeal. For the purpose of deciding that issue we have to assume the appellant could prove certain facts that are disputed and we will make it clear which facts we have found and which we are assuming only for the purpose of making that ruling.
6. We would have been reluctant to proceed in this way were it not for the fact that Mr Ellison on behalf of the appellant at the hearing on 27 June put the case for the appellant exclusively on the basis that the respondents alleged failures to follow correct procedures at the airport and in the subsequent complaints procedure are grounds for allowing the appeal.
7. The facts we find to be the case are that on 24 February 2005 Mr Levell flew to Barcelona from Liverpool and returned the same day arriving back at around 11.20 pm. The purpose of the trip was to buy cigarettes and tobacco and to meet a friend of his who lives near Barcelona. He returned with at least 4,200 cigarettes and 6 kilograms of tobacco. He had with him 11 receipts showing that he had bought in total 4,600 cigarettes and 7 kilograms of tobacco at Barcelona airport in 11 separate transactions between 8.14am and 11.27am. We are unable to resolve definitely at this stage whether he had with him only the smaller amounts when he returned to Liverpool. He was stopped by a Customs officer and at least 4,200 cigarettes and 6 kilograms of tobacco were seized in his presence. No notice of seizure or receipt for seized goods (Notice 12A) was issued to him and he was not given Notice 1 "A Customs Guide for Travellers Entering the UK" which explains amongst other things appeals against seizure.
8. We find as a fact that the appellant left the airport before any of those documents could have been given to him. Although Mr Levell appeared to contend in evidence that the officer dealing with him could have given him those documents before he left the airport we have seen the letter he sent to the appeals and reconsideration unit on 13 September 2005 which includes the following:

"I was taken into an office and had an interview with him [the officer]. I was asked would I make a statement. I then asked him, what will happen if I make a statement and he replied, I will probably take them anyway, because I don't believe you. So, I could not see any point in me staying to make a statement and him taking them anyway. … He wrote in his notebook. I decline to make a statement. Which I signed. There was not anything else written on the page I signed."

Mr Levell also stressed in his evidence that he was anxious about a friend of his who had arranged to come to the airport to collect him and who he assumed, correctly as it turned out, was waiting.

9. On that evidence we conclude that Mr Levell left somewhat precipitately and that the officer had no opportunity or no sufficient opportunity to issue any of the papers that would ordinarily have been issued
10. Mr Levell claims that when he signed the officer's notebook the only entry he signed was "I decline to stay for an interview" which is written on the 10^th and 11^th lines on the relevant page. He therefore claims that the officer subsequently added details of his date of birth, passport and address and the goods seized. He further alleges that the officer's entry about declining the interview was in pencil though he signed with a pen. The original note book was not available at the hearing and we did not hear from the officer so in fairness to both parties we will make no finding about these allegations though that should not be taken as any indication that we agree with them at this stage.
11. The appellant did not appeal against the seizure and in correspondence he says he only became aware that he had a right to appeal against the seizure (i.e. to give notice to the Commissioners requiring them to institute condemnation proceedings) when he received a copy of Notice 12A from the officer to whom he had complained about his treatment and that it was received with a letter dated 22 March 2005. We will assume these facts are proved for the purpose of this decision only.
12. If the letter had been received on 23 March 2005 then Mr Levell may have been in time to require condemnation proceedings though in reality it was probably too late as he would have needed to act on it that day.
13. Thus his complaint is that he had not been effectively informed of his right of appeal against the seizure. We will assume these facts are proved for the purpose of this decision only
14. The legal position is that the goods were liable to seizure under section 139 of the Customs and Excise Management Act 1979 because they were liable to forfeiture under regulation 16 of the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992. The liability to forfeiture was because the goods had reached the excise duty point provided by regulation 1(1A) of those Regulations when Mr Levell entered the country because they were held for a commercial purpose (though it would have been open to the appellant to show otherwise if condemnation proceedings had been commenced). He could only have shown the goods were not for a commercial purpose if he had been able to show that the goods were for his own use or as gifts without re-imbursement.
15. Of course, it would be entirely unreasonable to say the appellant ought to have known on 24 February 2005 that that was the legal position, but it is a principle of law that ignorance of the law is no excuse for failure to comply with it
16. However, what is in issue here is the commissioners' decision not to exercise the discretion they undoubtedly have under section 152 of the Customs and Excise Management Act 1979 to restore goods that have been seized and/or forfeited and it could be relevant to the exercise of that discretion to take account of the fact, if it is a fact, that the owner was deprived of that right by ignorance of the law.
17. The appellant's argument in this case is that he was deprived of the opportunity to challenge the seizure by the respondents' failure to carry out their own normal procedures in that he was not given the notices referred to above and in that the complaint was not dealt with sooner
18. The first point to make is that as the goods were seized in the presence of their owner, the appellant, there was no requirement for a written notice of seizure (see paragraph 1 of Schedule 3 of the Customs and Excise Management Act).
19. There is no legal requirement placed on the commissioners to issue a receipt for seized goods or a Notice 12A but we do not rule out the possibility that a failure to do so would be relevant to the exercise of the commissioners' discretion about restoration at least where the original seizure was incorrect and could have been challenged (though a challenge of that sort in the tribunal would have to avoid being an abuse of process in a case where there have been no condemnation proceedings).
20. However, on the facts of this case we regard that as irrelevant.
21. The appellant absented himself from the airport before the usual procedures could be completed, as he was perfectly entitled to do, but that deprived the officer of the opportunity to complete them and the appellant can hardly complain about that.
22. Once the goods had been seized and he had sought legal advice he cannot really complain that the officer dealing with his complaint did not inform him of his right to contest the seizure; especially as even now in the tribunal he has limited his attack on the decision not to restore the goods to complaints about procedural issues not the substance of the case.
23. In so far as the review officer has not taken into account the failure to issue a notice 12A or a receipt or other advice about the appellant's rights of appeal or any failure to deal more promptly or accurately with his subsequent complaint we are quite satisfied that if those matters had been taken into account and given our findings of fact about them; the decision would inevitably have been the same. Therefore on the grounds so far presented to the tribunal we rule against the appellant.
24. It is still open to the appellant to pursue any other grounds before the tribunal though nothing we have said in this preliminary ruling should be taken to suggest that we have decided any such issues one way or the other.
25. We will issue a separate direction about the future conduct of this case

RICHARD BARLOW

CHAIRMAN
Release Date: 23 August 2006

MAN/06/8006