United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2007/E01028.html
Cite as: [2007] UKVAT(Excise) E1028, [2007] UKVAT(Excise) E01028

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James Miller Peel v Revenue & Customs [2007] UKVAT(Excise) E01028 (20 February 2007)

EO1028

EXCISE DUTY APPEALS — practice and procedure — no appearance for Appellant — restoration of goods — "own use" alleged in condemnation proceedings brought in magistrates court — allegation abandoned and goods condemned by court as forfeit — appeal before tribunal against review upholding decision not to restore goods — "own use" again relied upon — abuse of process to seek to reargue "own use" in tribunal — appeal otherwise apparently without foundation — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

JAMES MILLER PEEL Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Michael Johnson (Chairman)

Kathleen Ramm FCA

Sitting in public in North Shields, Tyne and Wear on 25 January 2007

The Appellant did not attend and was not represented

Elizabeth McClory, counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2007


 


DECISION

1. In this appeal the Appellant is challenging the outcome of a review by an officer of Her Majesty's Revenue and Customs ("Customs") upholding an earlier decision not to restore to the Appellant certain excise goods ("the goods"), namely 675 litres of wine. The review decision was written by Mrs Deborah Gillespie of Customs and is dated 19 July 2006.
2. The goods were seized by Customs at the UK Control Zone in Coquelles, France, on 2 April 2006. The Appellant and his daughter Toni were travelling in a Mercedes-Benz Sprinter van, transporting the goods from France to England. The van was also seized. It belonged to a friend of the Appellant. The tribunal is not concerned with its restoration.
3. Customs suspected that the goods were being brought to England for a commercial purpose, namely to sell them. In interview, the Appellant and his daughter maintained that the goods were theirs, and were intended just for the Appellant, his wife and his daughter. However, Customs were not persuaded by this, and the goods were seized as liable to forfeiture under s 139 of the Customs and Excise Management Act 1979 ("the 1979 Act").
4. The Appellant wrote to Customs on 3 April 2006 challenging the seizure. He lodged an appeal letter requiring Customs to commence condemnation proceedings under Schedule 3 of the 1979 Act. Miss McClory of counsel, who represented Customs at this hearing, informed the tribunal that Customs duly commenced such proceedings.
5. It is clear to us that those proceedings were commenced on the basis that the Appellant was contending that the goods were being brought to England for the Appellant's own use, and that of his family, so that no commercial purpose was involved. It was thus legal, according to the Appellant, for the goods to be transported to this country without payment of UK excise duty.
6. Therefore the case of the Appellant in the condemnation proceedings was that the seizure and forfeiture of the goods was improper. The issue for the court to determine was whether or not the goods were indeed for the Appellant's own use as he alleged. Had he persuaded the court as to that, the goods would have been returned to him as incorrectly seized.
7. For a reason that is unclear to the tribunal, the Appellant in the event did not participate in the resolution of the issue of legality. We were informed by Miss McClory that at the court hearing the Appellant did not attend to advance his case. She told the tribunal that he had withdrawn prior to the hearing. So the result of the hearing was that the court made an order confirming the legality of the seizure and the forfeiture of the goods.
8. The Appellant, however, now appeals to this tribunal. He invites us to exercise our jurisdiction under s 16(4) of the Finance Act 1994 ("the 1994 Act"). Under the 1994 Act, we have power inter alia to direct a further review of Mrs Gillespie's decision to uphold the earlier decision not to restore the goods to the Appellant, if we are satisfied that her decision was not one that an officer of Customs could reasonably have made.
9. Studying her decision, we note that it is predicated upon the issue of legality having been resolved against the Appellant, as indeed has happened: see page 4, second paragraph of the review decision. It was in our view reasonable for Mrs Gillespie to have treated that matter as falling to be decided by the court, one way or the other. Quite rightly, in our view, she confines her review to the circumstances of the case apart from the legality issue.
10. However, when we consider the grounds of the appeal before us, it is clear to us that what the Appellant is contending is the self-same matter that was to have been considered by the court in the condemnation proceedings, namely the allegation that the goods were for the Appellant's own use, and that of his family. This appeal appears to be founded on the fact that the review has not given due weight to that matter.
11. In our opinion, the "own use" issue, considered and ruled upon by the court, is res judicata. In other words, the court has concluded its determination of that issue, in the absence of the Appellant, and has decided the issue against him. It would be wrong, indeed an abuse of court process, for this tribunal to go behind that decision and allow the reopening of the issue in these proceedings.
12. We think that it was reasonable for Mrs Gillespie to proceed to review the earlier decision not to restore the goods to the Appellant on the basis that this was an illegal importation. In her review, she found that Customs' policy with regard to such cases had been correctly followed, and that there were no special circumstances calling for an exception to be made in the case of the Appellant. She concluded that the Appellant had been treated no more harshly or leniently than anyone else in similar circumstances, and that there was no reason to vary the application of Customs' policy in his case.
13. Bearing in mind that the appeal to this tribunal appears to have been founded on a misunderstanding, namely that the "own use" issue had not been given due weight by the reviewing officer, this appeal does not in our opinion get off the ground. If the Appellant had required the "own use" issue to be determined with his participation, it was for him to advance that issue in court, not before us. In order for that issue to remain a live one, the order of the court would need to have been set aside. We are not aware of any attempt on the Appellant's part to have that happen.
14. This appeal is therefore misconceived. That became apparent to us when we considered the contents of the bundle of documents presented to us by Miss McClory. In these circumstances, it appeared to us to be right to proceed with and dispose of the appeal in the absence of the Appellant or his representative, as we are empowered to do pursuant to rule 26(2) of the tribunal rules. No explanation was available for the Appellant's non-appearance, but it is perhaps indicative of his lack of faith in this appeal, which in the circumstances we can entirely understand.
15. We cannot fault the review officer's decision in any way. There is no cause for us to exercise our powers under the 1994 Act. For the above reasons, we dismiss this appeal.
16. No application was made for costs and none are awarded.

MICHAEL JOHNSON

CHAIRMAN
Release Date: 20 February 2007

MAN/2006/8040