United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01116.html
Cite as: [2008] UKVAT(Excise) E1116, [2008] UKVAT(Excise) E01116

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Brian George Yorke v Revenue & Customs [2008] UKVAT(Excise) E01116 (29 May 2008)

E01116

Excise – Restoration – Appellant argued that goods for own use – Abuse of process – Appeal dismissed

LONDON TRIBUNAL CENTRE

BRIAN GEORGE YORKE Appellant

and –

THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: DR KAMEEL KHAN (Chairman)

MRS SHAHWAR SADEQUE

Sitting in public in London on 8 May 2008

The Appellant did not appear

Mr Rupert Jones, Counsel, for the Respondents

© CROWN COPYRIGHT 2008

DECISION

The matter was heard pursuant to Value Added Tax Rules 1986/590 Rule 26(2).

The disputed decision of the Respondents is contained in a letter, dated 14 November 2006, to the Appellant which stated that after conducting a review they would not restore 8.9 kilogrammes of hand rolled tobacco (consisting of 178 pouches each containing 50 grams which attract total excise duty of £979.18 and which was seized on 23 August 2006.

Relevant facts

On 23 August 2006 the Appellant was stopped by Customs at Dover Eastern Docks. The Appellant confirmed, on initial questioning, that he was aware of the guidelines and had imported 180 pouches of tobacco and a carton of cigarettes. He produced the receipt for the goods.

An officer of the Respondents read the Appellant a "commerciality statement" and invited him to stay for a formal interview. The Appellant said he understood but his coach was about to depart. It was explained to him that he has various options. He could stay and answer questions, choose to leave in which event the goods would be seized or he could have the goods detained and returned at a later date and time for an interview. He chose to leave. It was explained to him that he could appeal and he would be given relevant information to do so.

The officer of the Respondents was satisfied that the excise goods (the tobacco) were held for a commercial purpose, which made the Appellant liable to forfeiture under section 49(1)(a) of the Customs and Excise Management Act 1979 ("CEMA") and under Regulation 16 of the Excise Goods (Holding, Movement, Warehousing and REDS) Regulation 1992. All the excise goods were seized under section 139(1) of CEMA.

On 29 August 2006 the Appellant requested restoration of the goods and gave notice of an appeal against the seizure. He said that the tobacco was for private use for a six month period for himself and James Skilleter (who also appealed).

On 31 August 2006 an officer wrote to the Appellant and Mr Skilleter explaining that the case was proceeding to the Magistrates Court and that restoration would be considered.

On 27 September 2006 an officer replied refusing to restore the excise goods to the Appellant.

In a letter received on 3 October 2006 the Appellant wrote asking for a review of the decision dated 27 September 2006.

On 5 October 2006 an officer wrote explaining the review process and inviting the Appellant to provide any further information in support of his request for review. On 14 November 2006 the Respondents confirmed that after conducting a review they would confirm the decision not to restore the excise goods. On 23 November 2006 the Appellant appealed to the Tribunal.

The Appellant had previously challenged the legality of the seizure under Schedule 3 of CEMA condemnation proceedings at the hearing which took place at the Channel Magistrates Court in Dover. The Appellant was successful and the Court ordered that the goods were not liable to forfeiture on 12 April 2007. The Respondents appealed on 16 April 2007. On 10 May 2007 the Respondents applied for the Tribunal appeal and all matters relating to it to be stoodover until 31 October 2007 until the outcome of the condemnation appeal proceedings at Maidstone Crown Court. That hearing took place on 1 June 2007 and the Magistrates' order was overturned. The Crown Court ordered that the goods be condemned as forfeit on the basis that on the balance of probabilities some of the tobacco was held by the Appellant for a commercial purpose. The Appellant was ordered to pay several hundred pounds costs to the Respondents.

The law

The legal provisions relevant to this matter are as follows:

Regulation 4 of The Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 ("the REDS Regulation"); Regulation 15 of The Beer Regulations 1993 and Regulation 12 of The Tobacco Products Regulations 2001, each as amended by the Excise Goods, Beer and Tobacco Products (amendment) Regulations 2002.

Regulation 16 of the REDS Regulations; Section 49(1) of the Customs and Excise Management Act 1979 ("CEMA")

Section 139(1) CEMA

Section 141(1) CEMA

Section 152 of CEMA

Sections 114-116 Finance Act 1994

The Appellant's case

In the Notice of Appeal dated 23 November 2006, the Appellant states that he wishes to appeal against the non-restoration decision and states his grounds as follows:

"Unlawful seizure on cross border shopping in EU Council Directive 92/12/EEC. I have been through all channels with Customs but they refuse to belief me that they were for own use. They seem to do what they like without any evidence. We smoke 150 gram packet a day so I was in the six months so-called guide levels which are unlawful by the Council Directive.

They keep writing to me for more information in support of my case but what more can I say that it was for my own use, or are we all guilty until proven innocent, they do not seize all the lighters or fag papers I get to go with the tobacco, I did tell them it was for own use what else can I do".

The Respondents' case

The Respondents make the following points:

That it would be an abuse of process for the Tribunal to make a finding that the goods were for personal use or that the seizure was unlawful. These matters have already been decided by the Crown Court.

That in reply to the Appellant's argument that the decision not to restore the goods was unreasonable, the Respondents say that the review decision was one that could reasonably have been arrived at.

Let us now look at the arguments.

In Gora and Others v Customs and Excise Commissioners 2004 (QB 93), the Court of Appeal established that the Tribunal did not have the jurisdiction to reconsider the legality of forfeiture and seizure of goods. In the more recent decision of the Court of Appeal in Gascoyne v Customs and Excise Commissioners (2005) CH 215. It was said that it would be an abuse of process for the Tribunal to re-open the issue of legality of seizure (para 55) and further that the matter would be res judicata.

The Appellant in this case was issued with a Seizure Information Notice which informs the owner of the seizure and with a Notice 12A which gives guidelines on what can be done where goods have been seized. The latter Notice explains the implications of not lodging an appeal against the legality of seizure. The Appellant therefore knew the goods were unlawfully seized and had a right to appeal against the legality of the seizure. It is clear that the Appellant had a realistic opportunity to commence condemnation proceedings and took it. There were two hearings, first on 12 April 2007 in the Magistrates Court and secondly on 1 June 2007 in the Crown Court. He lost in the Crown Court and therefore should not be permitted to re-open the issue of own use under the legality of the seizure before this Tribunal. For this reason the appeal would be dismissed.

For completeness, it should be stated that the non-restoration of the goods was reasonable and proportionate in the light of Lindsay v Customs and Excise Commissioners (2002) 1 WLR 1766. No hardship has been established by the Appellant with regard to the non-restoration.

The Respondents should be allowed their costs in this matter. The Respondents have provided to the Tribunal a Schedule of Costs totalling £1,066, a copy of which should be made available to the Appellant to allow representations to be made and considered before the costs award becomes final.

Appeal dismissed. The Appellant has 14 days from the date of this decision to appeal.

DR KAMEEL KHAN

CHAIRMAN

RELEASED: 29 May 2008

LON 2006/8104