United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2007/E01048.html
Cite as: [2007] UKVAT(Excise) E01048, [2007] UKVAT(Excise) E1048

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Anthony Evans v Revenue & Customs [2007] UKVAT(Excise) E01048 (19 June 2007)

E01048

EXCISE DUTY RESTORATION OF VEHICLE — owner not user — owner anticipating use of vehicle for importation of excise goods — owner indirectly contributing to smuggling attempt — non-restoration of forfeited vehicle reasonable — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

ANTHONY EVANS Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Michael Johnson (Chairman)

Alban Holden

Sitting in public in Manchester on 10 April 2007

The Appellant appeared in person

Jennifer Blewitt, counsel instructed by the Solicitor for H M Revenue and Customs for the Respondents

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

© CROWN COPYRIGHT 2007


 


DECISION

1. This appeal is against a review decision of H M Revenue and Customs ("Customs") upholding an earlier decision not to restore to the Appellant a Mercedes-Benz Sprinter van Registration No X878 ULG ("the van").
2. The van was seized by Customs at Dover Eastern Docks on 15 June 2006 on its return to the UK from France and Belgium. Mr Thomas Evans and Mr Colin Johnson were in the van at the time. Mr Thomas Evans is the father of the Appellant. The Appellant was not himself travelling with his father and Mr Johnson.
3. Customs seized quantities of cigarettes, hand-rolling tobacco, wine, spirits and in particular a large quantity of beer which were being transported in the van. The seizure was on the basis that Customs had formed the opinion that those goods ("the goods") were not for the travellers' own use. Mr Thomas Evans, who attended tribunal with his son, informed us that no appeal had been made against the seizure, nor had restoration of the goods been sought. Consequently the goods are in law deemed to have been properly seized, have become forfeited to the Crown and no question of their restoration arises.
4. The Notice of Appeal sets out the grounds of appeal as follows:

"I wish to appeal on the following grounds, that my vehicle was used by my father to bring back the legal amount of goods permitted. I have not consented to this before and should I have known at the time that my vehicle would have been used illegally I would not have given my consent."

5. The Appellant gave oral evidence to the tribunal in the course of which he explained the basis of his appeal. We find the following facts.
6. Mr Thomas Evans and the Appellant live at the same address in the Wirral. There were in June 2006 three vehicles kept at that address. One of these was the van, which belonged to the Appellant and was used by him for his work as a self-employed courier.
7. When Mr Thomas Evans used the van to go to the continent to get beer, the Appellant was aware that that was what he was doing, and the van was borrowed with his permission. Indeed, the Appellant requested his father not to bring back more in the way of beer than was allowed. However, the Appellant did not make this a condition of his father borrowing his van; he just assumed that his father would do as he had requested.
8. The Appellant was not acquainted with his father's fellow-traveller, Mr Colin Johnson. The Appellant asked his father no questions about Mr Johnson. The Appellant trusted his father, with whom he had lived all his life. With commendable frankness, the Appellant told the tribunal that his father was a regular traveller and that he had observed his father bring back excise goods from time to time, but that the quantities involved had not been large. He did not know what Mr Johnson's record for importing excise goods might or might not be. The Appellant said that he just left matters to his father. He himself had never been to France.
9. The Appellant told us that he now understood that all the beer brought to the UK in the van on this occasion was for Mr Johnson. He said that he did not appreciate at the time that Mr Johnson would be travelling and bringing back the goods. He assumed that only the legal amount of goods would be brought back. Some of those goods would be for him.
10. However, on 4 August 2006, the Appellant signed a questionnaire sent to him by Customs in which he accepted that he lent the van to his father "to carry the beer". The clear implication from this as we see it is that, whoever might be buying the beer, the van was required to carry the beer and might be freely used for that purpose. If only small quantities of excise goods were to be bought, the van would not have been needed: a car might have been used. The questionnaire states that Mr Thomas Evans and Mr Colin Johnson did have an alternative vehicle available. The questionnaire moreover states that this was the first occasion on which the van had been lent, implying that it had not previously been appropriate to lend it.
11. The total excise duty in respect of the importation of the goods was £3,228.73.
12. In a letter written by Customs to the Appellant dated 16 August 2006, Customs declined to restore the van to him, seeing that he was aware that the van was due to be taken abroad to purchase excise goods, that the occupants of the vehicle purchased such a large amount of excise goods – including an amount of beer that was more than seven times the guideline figure – and that some of the goods were for the Appellant.
13. The Appellant asked for this decision to be reviewed. The review was conducted by Mrs Deborah Carole Gillespie of Customs. Her decision is contained in a letter to the Appellant dated 10 October 2006.
14. In that letter, Mrs Gillespie upheld the previous decision not to restore the van. She stated that if the Appellant could show that he was both innocent and blameless for what she described as "the smuggling attempt", then consideration might be given to restoring the vehicle for a fee. If in addition to demonstrating innocence and blamelessness, the Appellant could show that he had taken reasonable steps to prevent smuggling in the vehicle, then consideration might be given to restoring the vehicle free of charge. However, she wrote, a vehicle would not normally be restored in a situation where that would be tantamount to restoring it to the person responsible for the smuggling attempt.
15. Mrs Gillespie pointed out that Mr Thomas Evans was a frequent traveller to the continent who had been intercepted by Customs on a number of occasions carrying excise goods. Mrs Gillespie listed these occasions. There were considerable gaps between trips. It is interesting to note that, having been intercepted, Mr Evans was on various occasions allowed to proceed with the goods being carried. This in our view goes to confirm the evidence of the Appellant to the effect that his father had not been engaged in large-scale smuggling.
16. However, Mrs Gillespie concluded that the importation with which we are concerned, coming on top of previous trips on which Mr Thomas Evans had brought back sufficient tobacco and cigarettes to last a 20-a-day smoker about five years, meant that the Appellant must have been aware that the purpose of using the van was to make a commercial importation of excise goods. Moreover, she wrote, the van had been borrowed to transport the beer, as the Appellant admitted in the questionnaire, and some of the goods were said to be for him.
17. Consequently Mrs Gillespie concluded that the Appellant was not an innocent third party, and she upheld the decision not to restore the van, even for a fee.
18. Appearing for Customs, Jennifer Blewitt said that the Sprinter van was a large one, and it was carrying a large quantity of excise goods. She said that, when the Appellant made the van available, he took no steps to limit the way in which the van might be used. She submitted that he was clearly implicated in the illegal importation and that the appeal was without merit.
19. The Appellant was given the final word but had nothing to add.
20. In our view it is very clear that the van was provided in order to transport quantities of excise goods, in particular beer, in excess of the amounts that would normally be imported for the travellers' own use. We think that there is force in the point that, Mr Thomas Evans having travelled regularly to the continent with the knowledge of the Appellant and having brought back quantities of cigarettes and tobacco, the trip with the van must have been regarded as something of a special expedition. If the intention had been to bring back reasonable quantities of excise goods, use of the van would have been unnecessary.
21. As it was, the Appellant knew that the van was likely to be used for transporting quantities of alcoholic beverages. We accept that he knew nothing of Mr Johnson, but he (the Appellant) provided the opportunity for Mr Johnson to bring back as much beer as he might decide, up to the considerable capacity of the van. The Appellant had, as he accepts, no control over the use of the van. The van had been given by the Appellant into the control of Mr Thomas Evans, who permitted its use by Mr Johnson.
22. Accordingly the Appellant was reckless as to how the van might be used, knowing as he did that the van was going to the continent, that excise goods would be brought back, and that the quantities of such goods might or might not be at a commercial level. In our view the Appellant must share the responsibility for the illegal importation, having provided the crucial constituent of the transport that made the importation possible. We agree with Miss Blewitt that there is no merit in the appeal.
23. Bearing in mind that, pursuant to section 16(4) of the Finance Act 1994, we could only allow this appeal if we came to the conclusion that Mrs Gillespie could not reasonably have arrived at the decision appealed against, we were in no doubt at the conclusion of the hearing that we could not allow the appeal. We decided that it was entirely reasonable not to offer restoration of the van. As we see it, the Appellant had himself to blame for the seizure of the van, and the circumstances were not such that restoration should have been offered.
24. We accordingly announced at the end of the hearing that the appeal was dismissed. This decision provides the record of our reasons for so deciding.

MICHAEL JOHNSON

CHAIRMAN
Release Date: 19 June 2007

MAN/2006/8053