United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01082.html
Cite as: [2008] UKVAT(Excise) E1082, [2008] UKVAT(Excise) E01082

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Antonios Skarlatos v Revenue & Customs [2008] UKVAT(Excise) E01082 (16 January 2008)

E01082

EXCISE DUTY – restoration of cigarettes with conditions – postal importation –– solicited goods – gift concession did not apply – decision reasonable – Appeal dismissed

LONDON TRIBUNAL CENTRE

ANTONIOS SKARLATOS Appellant

- and -

HER MAJESTY'S REVENUE and CUSTOMS Respondents

Tribunal: MICHAEL TILDESLEY OBE (Chairman)

MOHAMMED FAROOQ (Member)

Sitting in public in Birmingham on 7 December 2007

The Appellant did not appear

Victoria Edmonds-Shakell , counsel instructed by the Solicitor for HM Revenue & Customs, for the Respondents

© CROWN COPYRIGHT 2008


 


DECISION

The Appeal

1. The Appellant was appealing against the Respondents' decision on review dated 6 March 2007 offering restoration of 2,620 cigarettes on payment of £518.12.
2. The Appellant requested the Appeal to be dealt with in his absence by letter dated 7 November 2007. We heard evidence from David Cawthraw, the review officer. We considered the Appellant's correspondence which included a letter from Mr D Fotopoulos, the sender of the cigarettes.

The Dispute

3. On the 17 January 2007 at Mount Pleasant Parcel Post Depot, a parcel from Greece addressed to the Appellant was intercepted. The parcel was found to contain 2,620 cigarettes.
4. The Respondents will not make additional charges for cigarettes sent through the post from another Member State if the postal consignment meets the requirements of the gift concession, which comprise the following:

(1) It must be an unsolicited gift

(2) The goods must have been sent by one private person to another private person.

(3) The goods must be for the recipient's own use.

(4) The recipient must not have paid for the gift either directly or indirectly.

(5) There must not be any commercial or trade element to the contents of the consignment.

(6) The gift must be of an occasional nature only, for example, for a birthday or anniversary.

5. Mr Cawthraw considered that the consignment did not meet the requirements of the gift concession, in particular the consignment was solicited by the Appellant and was not gift wrapped. In the circumstances he decided that the cigarettes should be restored to the Appellant on payment of £518.12 which represented the UK duty on the cigarettes, the VAT on the duty, and a penalty of 15 per cent of the duty and VAT.
6. We are not entitled to substitute our own decision for that of Mr Cawthraw's. We are restricted to considering whether Mr Cawthraw's decision to restore on terms was a decision which no reasonable body of Commissioners could have arrived at. In order for the decision to have been reasonable Mr Cawthraw must have considered all relevant matters and must not have taken into consideration irrelevant matters.

The Facts

7. We make the following findings of fact:

(1) In October 2006 whilst in Greece the Appellant requested a Mr Fotopoulos to send him a Greek brand of cigarettes which were not available for sale in the United Kingdom. Mr Fotopoulos was a longstanding friend to the Appellant. He was best man at the Appellant's wedding in 1981.

(2) In January 2007 Mr Fotopoulos posted the Appellant a parcel comprising 2,620 cigarettes. On 17 January 2007 the parcel was intercepted at Mount Pleasant Parcel Post Depot in London. The parcel was not gift wrapped. The parcel contained no letter to indicate that it was a gift.

(3) The Appellant did not pay for the cigarettes, which were intended for the personal consumption of himself and his wife.

(4) No UK excise duty was paid on the cigarettes.

(5) The Appellant did not know that it was illegal to send cigarettes by post from another Member State when the duty of that Member State had been paid on the cigarettes.

Reasons for Decision

8. We are satisfied that the Appellant did not know that he was doing something wrong, and that it was most likely an honest mistake that he arranged for the postal importation of cigarettes from his native country, Greece. However, we are not dealing with a criminal matter. We are considering whether Mr Cawthraw's decision to restore the cigarettes on terms was reasonable.
9. Mr Cawthraw took account of the facts that the consignment was solicited by the Appellant and that the parcel bore no obvious signs of being a gift. Mr Cawthraw formed the view that the gift concession did not apply to the consignment. He decided that there were no aggravating circumstances to the importation. In those circumstances he considered that restoration on terms was a proportionate way of dealing with the Appellant's breach of the rules in respect of importations of excise goods from other Member States.
10. We are satisfied that the Mr Cawthraw had regard to relevant matters and disregarded irrelevant matters. Our findings of fact support his conclusion that the consignment was not a genuine gift in that the Appellant solicited the cigarettes from his friend. Also there was no evidence that the consignment was connected to an event usually associated with a gift. We consider that restoration on terms was a proportionate response to the Appellant's breach.

Decision

11. We are satisfied for the reasons set out above that the Respondents' decision on review dated 6 March 2007 restoring the cigarettes on terms was reasonably arrived at within the meaning of section 16(4) of the Finance Act 1994. We, therefore, dismiss the Appeal. We make no order for costs.

MICHAEL TILDESLEY OBE

CHAIRMAN

RELEASE DATE: 16 January 2008

LON 2007/8040