United Kingdom VAT & Duties Tribunals (Excise) Decisions

 


E00983EXCISE DUTY – seizure of vehicle – vehicle used to import 19 kilograms of tobacco – whether review officer could not reasonably have arrived at the decision not to restore – no – appeal dismissed – FA 1994 s16(4)

LONDON TRIBUNAL CENTRE

CHRISTOPHER SEAN RANKIN

Appellant

-and-

THE COMMISSIONERS FOR HER MAJESTY'SREVENUE AND CUSTOMS

Respondents

Tribunal: DR A N BRICE (Chairman)MR P D DAVDA FCA

Sitting in public on 21 July 2006

The Appellant in personSarabjit Singh of Counsel, instructed by the Acting Solicitor of HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2006

DECISION

The appeal

1. Mr Christopher Sean Rankin (the Appellant) appeals against a review decision dated 18 May 2005 given by The Commissioners for Her Majesty's Revenue and Customs (Customs). The review decision confirmed an original decision dated 18 March 2005 which refused to restore to the Appellant a Ford Mondeo Ghia motor car with registration R956 HEV (the motor car). The motor car had been seized because Customs were of the view that it had been used to import 19 kilograms of tobacco without payment of excise duty.

The legislation

2. The relevant legislation about excise duty and tobacco products is now contained in The Tobacco Products Regulations 2001 SI 2001 No. 1712 as amended by The Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002 SI 2002 No. 2692. In summary, the legislation provides that, where excise goods are acquired by private individuals in another member state for their own use and transported by them to the United Kingdom, duty is charged in the member state in which the goods are acquired. Own use includes a personal gift. However, where excise goods are held in the United Kingdom for commercial purposes then duty is due here from the holder of the goods.
3. In order to establish whether excise goods transported by private individuals are held for commercial purposes regard has to be had to a number of factors one of which is the quantity of the goods. At the time of the importation the relevant quantities were 3,200 cigarettes and 3 kilograms of tobacco. Also, if excise goods are transferred to another person for money or money's worth, or if the person transporting the goods is to receive any re-imbursement of the expenses incurred in obtaining them, then the goods are regarded as held for commercial purposes.
4. Section 49 of the Customs and Excise Management Act 1979 (the 1979 Act) provides that goods which are imported without payment of duty are liable to forfeiture and may be seized and section 141(1)(a) provides that any vehicle used for the carriage of goods liable to forfeiture may be seized. Section 152(b) of the 1979 Act provides that Customs may, as they see fit, restore anything forfeited or seized. Section 14 of the Finance Act 1994 (the 1994 Act) provides that Customs may be required to review certain decisions and these include decisions as to whether or not anything forfeited or seized is to be restored.
5. There is an appeal to the Tribunal from a review decision but section 16(4) of the Finance Act 1994 Act restricts the power of the Tribunal on an appeal. The Tribunal, of course, may dismiss an appeal but cannot simply allow it. The Tribunal may only do one or more of the three things mentioned in section 16(4) and then only if they are satisfied that the review officer could not reasonably have arrived at the review decision. The three things are: (a) to direct that the disputed decision ceases to have effect; (b) to require the Respondents to conduct another review in accordance with the directions of the Tribunal; and (c) to declare the decision to have been unreasonable.

The issues

6. As this appeal is from a review decision not to restore a motor car what we have to decide is whether we are satisfied that the review officer could not reasonably have arrived at his decision. If he could not, then we have to go on to decide what action we should take under section 16(4).

The evidence

7. The Appellant gave oral evidence on his own behalf. A number of documents were produced by the Appellant, including some testimonials to the Appellant's good character, signed by a number of individuals, namely:

Mr Paul Clark MP 26 July 2005

Mr Louise Hayes 7 September 2005

Dr L N Shaunak 20 September 2005

Mr Peter Busbridge 2 February 2006

Mr Stuart D Hodges 10 February 2006

Ms Deborah Carole Brookes 20 February 2006

Mr Paul M Street 23 February 2006.

Mrs Verna Sutton 28 February 2006

Mr Ian Docker 19 April 2006 (received)

Mr Ian Docker 21 April 2006

Mr Robert Henbury 8 March 2006

Mr C C Rankin 12 March 2006

Mr P Docker 28 March 2006

Mr John Clayton 31 March 2006

Mr David Lawson 7 April 2006

Mr Paul Mcarthy 11 April 2006

Mr C C Rankin Undated

Mr Steve Rolls Undated

8. In deciding what weight to give to this evidence we bore in mind that the writers did not attend the hearing to give oral evidence and so could not be questioned by Customs or the Tribunal.
9. Another bundle of documents was produced by Customs. A witness statement dated 8 August 2005 by Mr Gareth Morgan containing evidence on behalf of Customs had been served under Rule 21 of the Value Added Tax Tribunals Rules 1986 SI 1986 No. 590 and was not objected to by the Appellant. Accordingly we admitted it in evidence at the hearing of the appeal as evidence of the facts stated in it.

The facts10. From the evidence before us we find the following facts.The importation11. The Appellant was stopped on 27 February 2005 at the UK Control Zone, Coquelles driving the motor car. He had one passenger, Mr Ian Docker. The Appellant is divorced and Mr Docker is single. The Appellant runs his own business and sells golf equipment. He is able to visit some other golf clubs and play golf without paying. Mr Docker is a football coach and has an arrangement through his employment that he receives free travel with a ferry company. They both live within forty minutes of Dover and Folkestone.

10. When it was stopped the motor car contained 19 kilograms of tobacco and 1,800 cigarettes. Details are:

Tobacco Quantity Cigarettes Quantity

Golden Virginia 16.5 kilograms Benson & Hedges 1,000

Old Holborn 1.5 kilograms Superking 600

Drum 1.0 kilogram Marlborough Lights 200 ---------------- ------

19 kilograms 1,800

11. It appears that a pouch (or packet or sachet) of tobacco weights 50 grams and so there are 20 pouches for each kilogram. Accordingly, the numbers of pouches of tobacco were

Golden Virginia 330

Old Holborn 30

Drum 20

-----

380

12. It also appears that tobacco is sold in "boxes of 10" which we take to mean 10 pouches. A box of ten pouches would thus weigh half a kilogram and so there would have been 38 "boxes of ten".

The initial interview

13. Initially a Customs Officer spoke to the Appellant and Mr Docker. The Appellant stated that they had been to France and Belgium to purchase tobacco and cigarettes. When asked how much tobacco they had purchased the Appellant replied "three boxes of ten". The Appellant was requested to produce receipts and he produced a receipt from "English Tobacco Adinkerke" for £1,222.50. The Appellant was asked if all the goods were his and he answered: "Yes, and some of his" (meaning Mr Docker). When asked why all the goods were on one receipt the Appellant replied that Mr Docker had given him some money and he (the Appellant) had paid for the goods. The Officer then asked Mr Docker if he had any receipts and Mr Docker produced a receipt from "English Tobacco Adinkerke" for £84. When asked why he had purchased that amount of tobacco Mr Docker replied that that was all the money he had with him. The Appellant was asked when was the last time he had "travelled across" and he replied "six months ago". When asked whether that was for tobacco the Appellant replied "No, just for drink". At that stage both the Appellant and Mr Docker signed the Officer's notebook and were then interviewed separately.

The interview of the Appellant

14. During his interview the Appellant was asked what goods he had purchased that day and he replied "Benson & Hedges, Golden Virginia, two lots of Drum for myself and I think Ian had Old Holborn and I think Marlborough Lights – a box of 200". When asked about the quantities they had purchased the Appellant replied "Between us 3 boxes of Golden Virginia; 5 packets of 200 Benson & Hedges; two packets of 10 of Drum; 3 packets of 10 of Old Holborn; 1 packet of 200 Marlborough Lights; 3 packets of 200 Superkings Menthol; and about three packets of 10 Golden Virginia."
15. When asked what goods were his, the Appellant replied that 200 Golden Virginia and the Drum were his as well as the Benson & Hedges, the Superkings and the Marlborough Lights. The goods were for himself and his family. For himself were the Golden Virginia and the Drum. He did not know how much he had paid for the gifts but the family had not given him any money towards them. When asked how many roll-up cigarettes he smoked each day the Appellant replied that he would probably get through two packs of 50 grams a week. When asked how many roll-ups he got from a pouch of tobacco the Appellant replied that it varied and depended upon whether he was running short of tobacco or not. He had never counted how much he would get from a pouch. He smoked about 30 or 40 cigarettes a day. He did not know how long the imported tobacco would last him but guessed six months depending upon whether he gave it to other people as well. He had no idea how much he would give away; it depended upon whom he met.
16. When asked when was the last time he had "done a cross-Channel trip" the Appellant replied that he thought it was December (2004). He then said that during the last six months he had travelled about once a month but had not brought back any tobacco or cigarettes on those occasions, only alcohol. When asked why he had first said that his previous trip was six months ago, the Appellant replied that he thought that question had been only about tobacco and he had last imported tobacco goods about six or eight months ago. On that journey he had brought back Golden Virginia and Benson & Hedges – just over 100 packets of Golden Virginia and 3000 Benson & Hedges. They were to be smoked by himself, his family and friends. When asked if he had any tobacco left from his previous trip the Appellant replied that he had "a few pouches".
17. The Appellant was asked about his financial circumstances and how much cash he had taken abroad. The Appellant said that he had taken £1,500 in cash on the trip that day and had spent £1,300. Mr Docker had accompanied him on previous trips but not on the last occasion that he had purchased tobacco. The Appellant said that he had paid for goods belonging to Mr Docker. He did not know how much but would work it out when he got home. Mr Docker had given him some money; he did not now how much but Mr Docker would know. The Appellant confirmed that he had no smoking materials with him that day because he did not smoke in his car. The Appellant signed the Officer's notebook.

Mr Docker's interview

18. Mr Docker was interviewed separately. He gave details about his financial circumstances and said that the goods that he had imported that day were: 30 pouches of Golden Virginia; 6 kilos of Old Holborn; and some wine. He was a smoker and smoked between four and 10 cigarettes each day. He usually smoked Golden Virginia but did not mind Old Holborn. A 50 gram pouch of tobacco lasted a couple of weeks. The goods he had purchased were for himself and his brother. He did not identify specific goods which were for his brother but said that "I will just share it with him – If my brother wants some tobacco then he can have some for what I paid for it but if he doesn't want to pay then he can just have it. I'm buying a house so he knows I'm skint so he might give me the money for some of it." Later Mr Docker said that he expected his brother to have about half of the Old Holborn.
19. Mr Docker said that he had paid for 30 pouches of Golden Virginia but he did not have enough money to pay for the Old Holborn so the Appellant had purchased it for him and he (Mr Docker) would refund the money either later that night or over the next couple of days. He did not know how much he owed the Appellant but said that they would sort it out when they got home; he had not given any money to the Appellant. The last time he had travelled abroad was before Christmas; he then immediately corrected this statement and said that the last time had been five weeks previously and the Appellant and himself had been to Eastenders.. On that occasion they had not purchased tobacco, just alcohol. The visit before that was before Christmas (and that was the last time that he had purchased tobacco). On that visit he had purchased 2 packets of the 10oz Golden Virginia and a pack of 10 Old Holborn which he had given to his brother for Christmas. The visit before that was hard to remember but it was possibly five or six weeks previously, in November or possibly October. He expected the tobacco which was his to last about 2 or 3 months. A 50 gram pouch of tobacco usually cost £9 or £10 in the United Kingdom. Mr Docker signed the Officer's notebook.

The seizure

20. After the two separate interviews the Officers said that they considered that the goods were being imported for commercial purposes because: the Appellant had misled them about previous travel; there had been conflicting explanations about payment for, and ownership of, the tobacco goods; there had been recent regular travel; at his stated consumption rates the Appellant's tobacco would last approximately two years and Mr Docker's would last approximately three years; neither were in possession of any smoking materials; there was a mixture of brands of tobacco goods; and ownership had been claimed of non-existent goods. Accordingly, both the goods and the motor car were seized and the Appellant was given Notice 12A. That day or the next the Appellant telephoned the Customs' Seizure Unit and they explained the difference between condemnation and restoration.
21. On 28 February 2005 the Appellant wrote to the Seizure Unit asking that his car be restored as it was his only means of transport. That request was refused on 18 March 2005. On 1 April 2005 on behalf of the Appellant his solicitors requested a review of that refusal and correspondence then followed between the Appellant's solicitor and Customs and between Mr Paul Smith MP and Customs.

The review decision

22. The review decision was given on 18 May 2005 by Mr Gareth Morgan. Mr Morgan listed the excise goods which had been seized and the duty on them which amounted to £2,317.70. The excise duty on the tobacco alone amounted to £1,984.94. Mr Morgan considered the following factors arising out of the interviews with the Appellant and Mr Docker:

(1) that the Appellant had said that Mr Docker had given him money to pay for some of the goods; he did not now how much. Mr Docker, however, had stated that he had not given any money to the Appellant. Neither seemed clear how much each was to pay for the goods;

(2) that a large payment had been made in cash;

(3) that the statements in the interviews about previous travel were inconsistent; the Appellant's motor car had in fact travelled on thirteen occasions in the last 17 months namely on:

18 September 2003

7 November 2003

20 February 2004

26 March 2004;

14 May 2004

11 June 2004

24 August 2004

19 October 2004

9 November 2004

30 November 2004

12 December 2004

23 January 2005

27 February 2005

(4) that there was confusion over who owned what goods. On 3 May 2005 the solicitors for the Appellant had written to Customs to say that Mr Docker had meant to say that 120 pouches of Golden Virginia and 3 packets of Old Holborn were his; if Mr Docker had indeed purchased 120 pouches (6 kilograms) of tobacco it was surprising that he could not remember how much it cost and it was also surprising that he had spent so much on tobacco when he was buying a house and was "skint";

(5) that neither the Appellant or Mr Docker had any smoking materials with them, despite the claim of the Appellant to smoke between 30 and 40 cigarettes a day; and

(6) that, at the Appellant's declared consumption rate, and even if he gave away 50 pouches, 150 pouches would have lasted him 75 weeks.

23. Mr Morgan then concluded that the tobacco had been imported for sale at a profit. Although it was policy to consider restoring vehicles used in first offences involving small quantities of goods that did not apply because 19 kilograms was not a small quantity. Also, because the excise duty involved was over £2,000 and the trade value of the motor car on the date of the original decision to refuse to restore was less than that, the refusal to restore was fair and proportionate. Finally, Mr Morgan considered whether the refusal to restore the motor car would cause exceptional hardship and concluded that it would not. Another vehicle, T445 BSW was registered at the Appellant's address.
24. Mr Morgan therefore confirmed the original decision that the motor car should not be restored to the Appellant. It is against that review decision that the Appellant appeals.

Reasons for decision

25. What we have to decide is whether we are satisfied that Mr Morgan could not reasonably have arrived at his decision.
26. In this appeal the burden of proof is on Customs to prove, on the balance of probabilities, that the goods were imported by the Appellant for commercial purposes meaning for sale at a profit. However, in John Richard Lindsay v Commissioners of Customs and Excise [2002] EWCA Civ 267 at [22] and [28] Lord Phillips MR referred to an importation of 18,500 cigarettes and ten kilograms of tobacco as "amounts from which the Tribunal could properly have concluded that Mr Lindsay was using his vehicle for commercial smuggling". In our view 19 kilograms of tobacco is of the same order of magnitude as the size of the importations in Lindsay and that is relevant to the burden of proof.
27. We have found it convenient to consider the reasonableness of the review decision by first referring to each of the six factors relied upon by Mr Morgan.

(1) Confusion about payment

28. We agree with Mr Morgan that at the various interviews there were inconsistencies between the statements of the Appellant and the statements of Mr Docker about payment for the goods. The Appellant had said that the goods on his receipt were for both him and Mr Docker and that Mr Docker had given him money before the purchase of the goods whereas Mr Docker had said that he did not give the Appellant any money before the purchase.
29. At the hearing the Appellant claimed that during his interview he had said that Mr Docker had given him money a month previously and suggested that Mr Docker had forgotten that he had given the money to the Appellant. In oral evidence the Appellant told us that when the goods were being purchased Mr Docker had given him money and had also given him money about one month before. He did not know how much he had paid for Mr Docker's goods and intended to work it out when he got home. He agreed that his statement at interview, and the statement of Mr Docker at his interview, were inconsistent but suggested that Mr Docker had forgotten that he had given money to the Appellant.
30. We do not find this evidence convincing and Mr Docker did not give oral evidence before us. We are of the view that, on the balance of probabilities, Mr Docker had not made any payment to the Appellant before the purchase of the goods. We also note that at the interviews the Appellant did not know how much he had spent on gifts. He also said that he had paid for goods for Mr Docker but did not know how much he had paid.

(2) Payment in cash

31. We agree with Mr Morgan that a large payment in cash had been made. At the hearing the Appellant claimed that he had paid in cash because he did not have sufficient credit on his credit card and also because it was cheaper to pay in cash than to pay to exchange currency. We would not regard payment in cash by itself as showing an intention to sell on at a profit but it is consistent with such an intention when taken with the lack of certainty about who was ultimately going to pay for the goods and also the lack of certainty about who owned what goods (which we consider later).

(3) Previous travel

32. We agree with Mr Morgan that the statements at the interviews about previous travel were inconsistent.
33. At the hearing the Appellant claimed that when he was asked at the initial interview when he had last visited France and he had replied six months ago he thought that the officer was referring to going to France for cigarettes. He accepted that he had answered the question differently when asked in his separate interview. We do not find this evidence convincing. The question actually put to the Appellant at the initial interview was: "When was the last time you travelled across?" We find that question unambiguous and do not think that it could be interpreted as referring only to travel for cigarettes.
34. At the hearing the Appellant's explanations for the previous visits were:

18 September 2003 Golf

7 November 2003 Golf

20 February 2004 Visit to estate agent

26 March 2004 Golf

14 May 2004 Golf

11 June 2004 Visit to estate agent

24 August 2004 Golf

19 October 2004 Social trip to Calais

9 November 2004 Calais "booze run" for Christmas presents

30 November 2004 Golf

11 December 2004 Trip to Calais – Mr Docker was taken to hospital with appendicitis

23 January 2005 Calais to purchase gifts for St Valentine Day

27 February 2005 Stopped.

35. In support of this claim the Appellant produced copies of diary entries and copies of correspondence with a French estate agent and argued that with all those activities he would not have time to go to Belgium as claimed by Customs.
36. Although we have no reason to doubt this evidence we note that the Appellant travelled more frequently than he first stated at his initial interview. We make no assumptions about whether excise goods were purchased on any of the previous trips but we do note that if travellers are making such frequent journeys then it would not normally be expected that they would purchase for their own use (including gifts) on one occasion more than is required until the next occasion, especially when cash is paid for the goods.

(4) Confusion about the ownership of the goods

37. We agree with Mr Morgan that there was confusion about who owned what goods.
38. At the hearing the Appellant produced a schedule which claimed that the imported goods were destined for:

Himself 140 pouches of Golden Virginia

For Mr Docker 120 pouches of Golden Virginia

30 pouches of Old Holborn

200 Marlborough

As a gift to Mr Hodges 1000 Benson & Hedges

50 pouches of Golden Virginia

As a gift to his father 600 Superkings

20 pouches Drum

39. The oral evidence of the Appellant was that the Mr Hodges mentioned in the schedule was the captain and a member of the Eagle Golf Society and introduced the Appellant to that Society and the Appellant promised a gift of tobacco by way of thanks. One of the copy letters produced by the Appellant was from Mr Hodges and was dated 10 February 2006. It stated that in February 2005 the Appellant had telephoned Mr Hodges and said that he was going abroad and on his return would send him 1000 Benson & Hedges and 5 cartons of Golden Virginia tobacco. Another of the copy letters was from Mr C C Rankin, the father of the Appellant, and it stated that he had asked the Appellant to bring him "two boxes of 10 Drum Tobacco and 1 packet of 200 Superkings".
40. We note that neither the list, nor the names of Mr Hodges or Mr C C Rankin, were mentioned at the interviews (although the Appellant did mention his family). We also note that the list is not consistent with the statements made at interview. We further note that the number of pouches of Golden Virginia on the list amounts to 310 and not to the 330 which were imported. We next note that at his interview the Appellant said that the Drum tobacco was for himself and the cigarettes were for his family whereas the list mentions that the Drum tobacco was for his father. At his interview the Appellant claimed 200 (pouches) of Golden Virginia but the list mentions 140 pouches with an additional 50 for gifts making 190.
41. There were also inconsistencies between the list and Mr Docker's statements. At interview Mr Docker stated that 30 pouches of Golden Virginia were his whereas the list mentions 120 pouches. On 3 May 2005 Messrs Pope & Co, the solicitors for the Appellant, wrote to say that when, at interview, Mr Docker had said that he had imported 30 pouches of Golden Virginia and 6 kilos (120 pouches) of Old Holborn it should have been the other way around, namely 120 pouches of Golden Virginia and 30 pouches of Old Holborn. Mr Docker repeated this in his letter received on 19 April 2006.
42. We do not find this evidence totally convincing. Mr Docker did not attend the hearing and so could not be questioned about his statements. We are of the view that normally when people purchase large amounts of goods for cash each knows what belongs to him and how much it cost.

(5) Lack of smoking materials

43. Like Mr Morgan we also find it surprising that, if the Appellant smoked 30 to 40 cigarettes each day, he had no smoking materials with him. The round trip to Belgium would last a number of hours and it would be surprising if a smoker surrounded by so much tobacco and cigarettes did not smoke some of it.

(6) Consumption rates

44. Like Mr Morgan we find the declared consumption rates of both the Appellant and Mr Docker to be disproportionate to the amount of tobacco claimed by each, especially bearing the mind the frequency of travel which gave the opportunity for the purchase of further supplies at short intervals.

Was there exceptional hardship?

45. For the above reasons we are satisfied that Mr Morgan, the review officer, could reasonably have arrived at his decision that the tobacco had been imported for sale at a profit. That conclusion is relevant to his decision about the restoration of the motor car. In Lindsay at [18] Lord Phillips MR distinguished between importations for distribution to friends and family against re-imbursement (which was commercial importation) on the one hand and importations for the purpose of sale at a profit on the other. At [63] he said that the non-restoration of cars was appropriate when goods were smuggled for sale at a profit although cases of exceptional hardship would always require due consideration.
46. We agree with Mr Morgan that 19 kilograms of tobacco is not a small quantity and so the policy for restoration for first offences does not apply. The Appellant produced an undated letter from Intaka (Kettering) Cars and Commercials which valued the car, with all its extra fittings, at a value of £2,750 at the date of the hearing and £4,250 at the time of the seizure. For Customs Mr Singh argued that the value taken by Mr Morgan had come from Glass's Guide and accepted that the value of the motor car would be higher if it included many extras. We accept that, with the extras, the value of the motor car at the date of the seizure was higher than the amount of the excise duty (£2,317.70). Nevertheless, bearing in mind that in our view the goods were imported for sale at a profit, the refusal to restore was fair and proportionate. Lord Phillips MR in Lindsay made it clear that, where smuggling took place for sale at a profit, the value of the car seized did not have to be taken into consideration.
47. Finally we consider whether the refusal to restore caused exceptional hardship. At the hearing the Appellant argued that the car with registration number T445 BSW mentioned by Mr Morgan as being seen at his house had belonged to his estranged wife. He claimed that for the first two months after the seizure his only transport was a van which was not suitable for his business visits to golf clubs. At first he said that his father had lent his car to him and so hardship was caused to his father who had to buy another car for himself. However, when it was put to the Appellant that a motor car with registration number KL51 PFY was registered in his name the Appellant accepted that he was the registered keeper of that car but claimed that that was the car which had been loaned to him by his father who had put it in his name and given it to him. The Appellant accepted that that car had been transferred to him on 21 April 2005 but argued that it was still his father's car and his father wanted it returned. However, the Appellant accepted that that car was suitable for him to visit golf clubs on business.
48. From this evidence we conclude that the Appellant has had the use of appropriate transport and so will not be caused exceptional hardship by the non-restoration of the seized car. Although there is some financial hardship, as the Appellant's father has had to purchase another car for himself, this does not in our view amount to exceptional hardship.

Conclusion

49. What we have to decide is whether we are satisfied that the review officer could not reasonably have arrived at his decision. We are not so satisfied. In our view the decision of the review officer was reasonable and for that reason we dismiss the appeal. However, three other matters were raised in argument and we now mention them.

Other arguments

50. First, the Appellant claimed that when being interviewed separately from Mr Docker he had felt under extreme pressure which continued until he signed the statement. We find this surprising. We would expect all travellers to co-operate with Customs Officers at all times and there is no need to experience pressure if travellers are telling the truth and acting within the law.
51. Next, the Appellant referred to the new ruling from the European Commission and argued that under that ruling Customs were not allowed to seize his car as it was the first time he had been stopped and he should be allowed to pay the duty instead of having his car seized. In a European Commission Press Release dated 28 June 2006 the Commission announced that the United Kingdom had amended its policies so that in first-time irregular movements without aggravating circumstances the holder of the imported goods would be offered the option of holding onto his goods against payment of the duty plus a penalty. Where a car was used to carry the goods in such cases it would not be seized but the owner would normally be warned that it could be seized in further cases.
52. This statement was made on 28 June 2006 and so could not have been taken into account by Mr Morgan in his review letter of 18 May 2005. In any event the new policy does not apply where there are "aggravating circumstances". In our view that would include smuggling for sale at a profit which means that the new policy would not apply in this appeal.
53. Finally, Mr Singh for Customs argued that the Tribunal had no jurisdiction to find that the goods were imported for the Appellant's own use and cited Gascoyne v Customs and Excise Commissioners [2004] EWCA Civ 1162 at [54] to [56]; the judgment of the High Court in The Commissioners of Revenue and Customs v Albert Charles Smith Unreported 17 November 2005; and The Commissioners of Customs and Excise v Weller [2006] EWHC 237 (Ch) In view of the conclusions we have reached we do not need to address this argument.

Decision

54. Our decision on the issue for determination in the appeal is that we are satisfied that Mr Morgan, the review officer, could reasonably have arrived at his decision.
55. The appeal is, therefore, dismissed.

DR A N BRICE

CHAIRMAN

RELEASE DATE: 30 August 2006

LON/2005/8079

29.08.06