United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01083.html
Cite as: [2008] UKVAT(Excise) E01083, [2008] UKVAT(Excise) E1083

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Boxton Ltd v Revenue & Customs [2008] UKVAT(Excise) E01083 (17 January 2008)

E01083

LONDON TRIBUNAL CENTRE

BOXTON LIMITED Appellant

and –

THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: HOWARD M. NOWLAN (Chairman)

Sitting in public in London on 11 January 2008

Steven Meyerhoff of Backhouse Jones for the Appellant

The Respondents were neither represented nor present at the hearing of their Application

© CROWN COPYRIGHT 2008


 


DECISION

Introduction

1. This was an Excise case involving the seizure of two lorries for having fuel tanks that slightly exceeded the permitted maximum size of tank, and for those tanks being filled so that on entry from Belgium into the United Kingdom the lorries were carrying excess fuel that had been purchased at the cheaper prices prevailing in Belgium.
2. The Appellant had asked for a Review of the seizure decision ("the first Review"). That Review had confirmed the seizure of the lorries, whereupon the Appellant appealed to this Tribunal. This Tribunal (Gill Gort, Chairman) had allowed the appeal and directed that a further Review ("the second Review") should be undertaken, directing the further points to be considered in that Review that she considered had been wrongly ignored in the first Review.
3. The second Review again confirmed the seizure, and the Appellant appealed again to this Tribunal. HMRC, the Respondents, delayed in issuing their Statement of Case in support of the decision in the second Review and applied for three extensions of time in which to produce that Statement. On all three occasions the Appellant consented to those extensions of time. On my understanding of the situation the Respondents failed to produce their Statement of Case within the time set by the third extension and were accordingly in breach of the Direction giving the third extension of time.
4. I understand that HMRC notified the Appellant's representative that further evidence had emerged, though in conversations between officers of HMRC and the Appellant's representative I understand that HMRC have to date refused to indicate what that further evidence is, and how that evidence might influence the decision on the second Review.
5. The Application before me was an application by HMRC that I should exercise the power given to this Tribunal under section 16(4)(b) Finance Act 1994, to order a further Review, in other words a "third Review" of the original seizure decision.
6. The Appellant's representative had travelled from Liverpool to London for the hearing. The Respondents did not appear for the hearing and did not indicate (when telephoned to enquire whether they proposed to attend) whether they intended to appear or not.

My decisions

7. I have decided to give my decision on the Application and to reject it, and also to allow the Appellant's appeal against the second Review decision, notwithstanding that the Respondents were not present. The result of this should be that the Appellant's lorries are restored to the Appellant. I should immediately confirm that because these decisions were given in the absence of the Respondents, the Respondents will have 30 days in which to seek to overturn my decisions on both matters, by convening a further hearing before the Tribunal and presenting their case on their Application at this further hearing.

The reasons for my Decisions

8. The reason for directing that the Decision of the second Review should cease to have effect and that the Appellant's appeal against that should be allowed is that the Appellant plainly contends that the Review decision should be overturned, and the very premise of the Respondents' present Application under section 16(4) is that the second Review decision was unreasonable. The terms of section 16(4) provide after all that the power to order the re-review that the Respondents were requesting me to order only applies "where the tribunal are satisfied that the Commissioners or other person making that decision (that is the decision in the second Review) could not reasonably have arrived at it".
9. Beyond the fact that the premise of the present application by the Respondents concedes that their second Review decision was unreasonable, I also note that notwithstanding that the facts and the reasoning should all have been fairly clear (particularly after the first appeal to this tribunal) there were nevertheless long delays in the provision of the Statement of Case to sustain that Review and indeed the Respondents have breached the last of the extensions given for the preparation of that Case. Beyond this, the premise of the Respondents' Application is that the Respondents will never issue a Statement of Case or indeed seek to sustain the second Review Decision.
10. My first reason for rejecting the Respondents' present Application to order a re-review is that the Application was after all their own application and they failed to appear at the hearing, notwithstanding that the Appellant's representative had travelled from Liverpool to attend the hearing. I do not know with certainty whether the Respondents definitely knew the date and time of the hearing, but the Appellant's representative certainly did, and I understood that there had been conversations between that representative and officers of HMRC not only leading to the latter refusing to indicate the nature of the new evidence that was said to have emerged and the way in which HMRC would now seek to sustain the seizure of the two lorries, but also about the hearing before this tribunal. No response was given to the Tribunal staff when they telephoned HMRC to ascertain whether anyone intended to address the Tribunal, either during the time set for the hearing or later in the day.
11. Whilst I appreciate that a Review can sustain an officer's original decision or seizure on different grounds that those originally given by the officer, I do find it extraordinary that officers of HMRC can implicitly make an original decision and then Review it twice, first in a way that this tribunal criticised and secondly (following guidance from this tribunal) in a way that they concede to be unreasonable, only to return on a "third time lucky" basis to seek to advance other grounds. It may emerge that the new evidence to which reference has been made (albeit that the Appellant has indicated that it cannot imagine what further evidence could have emerged) may be compelling, and this decision may be over-turned. Even however if it is what will still be clear is that the original seizure will have been sustained on quite different grounds than those advanced originally to support it, and indeed on grounds only emerging some years after the seizure.
12. Whilst I am not particularly influenced by this final point, it is also worth noting, in terms of proportionality, that the Appellant has already been penalized by being deprived of the use of two lorries for a two year period, and doubtless faces the prospect that on the restoration of those vehicles which should follow this decision (unless HMRC succeeds in over-turning it at a re-hearing where they are present) the lorries are quite likely to have deteriorated somewhat. I also note that in consenting repeatedly to requests for extensions of time for the preparation of the Respondents' Statement of Case, and in sending in to the Tribunal a well prepared statement at long last expressing the Appellant's loss of patience, that the Appellant has conduced its own appeal perfectly properly and can legitimately point to grievances against HMRC's conduct. Amongst grievances I count the fact that the Appellant was objecting, as it was entitled to do, to the Respondents' present Application without being given the slightest indication of the alleged new evidence or the grounds on which implicitly HMRC would seek to sustain the original seizure on a third Review, had I ordered that such a re-Review should be held.

Costs

13. I award the Appellant the costs of its appeal against the second Review decision and its costs of appearing before me in resisting the Respondents' present Application.

HOWARD M. NOWLAN

CHAIRMAN

RELEASED: 17 January 2008

LON/2007/8130