United Kingdom VAT & Duties Tribunals (Excise) Decisions

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Cite as: [2008] UKVAT(Excise) E01119, [2008] UKVAT(Excise) E1119

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Ms Millani Kalhorani v Revenue & Customs [2008] UKVAT(Excise) E01119 (06 June 2008)

E01119

Excise Duty – Travellers' Allowances Order 1994 – Seizure of goods – Appeal dismissed

LONDON TRIBUNAL CENTRE

MS MILLANI KALHORANI Appellant

and –

THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: DR KAMEEL KHAN (Chairman)

MRS C S DE ALBUQUERQUE

Sitting in public in London on 27 May 2008

The Appellant in person

Rupert Jones, Counsel, for the Respondents

© CROWN COPYRIGHT 2008

DECISION

The disputed decision of the Respondents is contained in a letter dated 14 August 2007 in which the Respondents notified the Appellant that they would uphold the decision not to restore 1 kilogramme of molasses tobacco, 2 kilogrammes of honey and 1,700 cigarettes seized from the Appellant on 10 April 2007.

Background

On 10 April 2007 the Appellant was detained at London Heathrow Airport in the Nothing to Declare channel following arrival of flight from Iran. The Nothing to Declare channel means that the passenger has no goods imported in contravention of a prohibition or restriction or in excess of their Customs allowance (200 cigarettes or 250 grams of tobacco under the Travellers' Allowances Order 1994). On being detained and questioned the Appellant stated she had no cigarettes or foodstuff in her baggage. A search was conducted and the Appellant was found to be carrying eight 1 kilogramme of molasses tobacco, 2 kilogrammes of honey and 1,700 cigarettes. The goods were seized on the basis that the officer of the Respondents was satisfied that the Appellant had failed to declare these goods which were in excess of allowances provided for by The Travellers' Allowances Order 1994. The goods were forfeited under section 49 and 78(4) of the Customs and Excise Management Act 1979 ("CEMA").

The Appellant was issued with a "Seizure Information Notice" (Form C156), Form 162 (Warning) and Customs Notice 12A "Goods and/or vehicles seized by Customs".

On 11 April 2007, the Appellant wrote stating that the goods did not belong to her but the owner was in Iran and she would write outlining her position. On 23 April 2007 the Appellant's mother wrote stating she was the person paying for the seized goods and authorising the Appellant to act on her behalf in any Court hearing. On 30 May 2007 the Respondents wrote refusing restoration of the goods and in a further letter dated 17 May 2007 the Respondents wrote inviting the Appellant to take legal advice as to whether to appeal the legality of the seizure by way of condemnation proceedings.

On 28 May 2007 the Appellant wrote confirming that she would proceed with her restoration claim and on 24 June 2007 reiterated her claim against the legality of seizure. On 28 July 2007 the Respondents wrote to the Appellant inviting her to provide any further evidence of information in support of the request. On 14 August 2007 the Respondents confirmed by letter that after completing a review they would not restore the goods to the Appellant.

The law

Without enunciating in detail the legal provisions, the relevant provisions are as follows:

Article 2(a) of the Travellers' Allowances Order 1994; 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, 139(1), 141(1), 152 of CEMA 1979; Regulation 4 of the Products of Animal origins (Third Country Imports) (England) (No.4) Regulations 2004

Section 14 to 16 Finance Act 1994.

The Appellant's case

In the Notice of Appeal dated 9 September 2007, the Appellant states – "I did not realise that I was carrying the goods as they were packed in my bags by others". The Appellant disputes the quantity of cigarettes carried and seized as being much less than alleged. She further stated that she was carrying one of the suitcases for her mother who was travelling to the UK shortly. She said her brother had packed the suitcase in question. The cigarettes were for people who supported the Appellant at the time when she was made redundant and was therefore gifts. She said she did not know the regulations relating to the quantity of cigarettes that were allowed to be brought into the UK nor the different Customs channels for passengers on entering the UK.

The Respondents' case

The Respondents say that this is a case where it would be an abuse of process for the Tribunal to make a finding that the goods were unlawfully seized pursuant to the case of Gascoyne v Customs and Excise Commissioners (2005) Ch.215 and CCE v Weller [2006] EWAC 237 (Ch.). Since the Appellant had not pursued condemnation proceedings regarding the legality of the seizure in which she would have had the opportunity to present her case on the legality of seizure she should not now be able to challenge the legality of the forfeiture in restoration proceedings.

As an alternative argument, the Respondents say that the decision not to offer the seized goods for restoration was reasonably arrived at and the seizure of the goods was lawful. They further say 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.

The Tribunal does not consider that this is a case where "normal English law rules of res judicata or abuse of process" (Gascoyne Case para 47) since no notice of claim were served by the owner of the goods and no condemnation proceedings initiated. It is clear from evidence given by the Appellant from her letter of 24 June that she was unclear on the procedure in making an appeal against the legality of seizure. In her letter of 24 June she clearly asked the question "is there any other form I should have been given which was not returned within 30 days". It is not easy for a lay person to understand these procedural rules.

However the decision not to offer the seized goods for restoration was reasonably arrived at since the seizure was lawful. The cigarette and tobacco were not declared and they are liable to forfeiture under Section 78(4) CEMA. No knowledge is required to be proved against the holder of the goods as the action is against the goods "in rem". The cigarettes and tobacco were liable to forfeiture under Section 49 CEMA in that no duty was paid upon the importation and they were liable to duty because they were in excess of the allowance under the Travellers' Allowances Order 1994. The honey was imported in contravention of a prohibition or restriction under Regulation 4 of the Products of Animal Origin (Third Country Imports) (England) (No.4) Regulations 2004 in that it was an animal origin products with a quantity in excess of 1 kilogramme.

While the Appellant may have been naïve in allowing a third party to pack the relevant suitcase and not to have verified its contents, there is a prima facie case that a person carrying a suitcase is the owner and should be aware of its contents. Passengers on international flights are or should be aware that they are responsible for the baggage they carry and are often asked if they are carrying goods for other people and whether they packed their bags themselves. The Appellant gave evidence which suggested that she might have known the contents of the gift packages in the relevant suitcase since there was a conversation with her mother about the packages, the gifts and who were to receive the particular gifts. She implied that the cigarettes were of Iranian origin and were for people who were regular users of such cigarettes.

Further, the Appellant had the receipt for the packed goods and whilst she may not have packed the goods, the identity of the goods is clear from the Iranian receipt for their purchase, which was in her possession.

The Appellant was honest in her evidence and there appeared to be no attempt to conceal any information from the Tribunal. There was strong evidence that the suitcase was for her mother and it was intended that she would apply for an entry visa for her mother to visit the UK. This however did not materialise. The Appellant is now familiar with the rules for the importation of goods into the UK having obtained various leaflets outlining details of the allowances and regulations involved.

The Tribunal finds that the non-restoration of the goods was reasonable and proportionate in the light of the Lindsay v Customs and Excise Commissioners (2002) (1 WLR 1766) and the inconvenience and expense caused to the Appellant was not exceptional hardship over and above what to expect in the circumstances.

The decision not to restore was reasonable and the Appellant in entering the green "Nothing to Declare" channel at the Airport and failing to declare the cigarettes and tobacco in excess of personal allowances provided grounds for their seizure. The law is quite clear in this area and the law was applied in a manner which was fair and reasonable given all the facts.

There are no issues as to costs. Appeal dismissed.

DR KAMEEL KHAN

CHAIRMAN

RELEASED: 6 June 2008

LON 2007/8082