United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01121.html
Cite as: [2008] UKVAT(Excise) E1121, [2008] UKVAT(Excise) E01121

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Garry Vevers v Revenue & Customs [2008] UKVAT(Excise) E01121 (24 June 2008)

E01121

EXCISE DUTY – Restoration of seized Mercedes Sprinter –– Appellant did not appear – vehicle condemned as forfeit by the magistrates – 100 kilograms of hand rolling tobacco imported – tobacco to be sold on at a profit – no exceptional hardship - was the decision not to restore the vehicle reasonable – yes – Appeal dismissed.

MANCHESTER TRIBUNAL CENTRE

GARRY VEVERS Appellant

- and -

HER MAJESTY'S REVENUE and CUSTOMS Respondents

Tribunal: MICHAEL TILDESLEY OBE (Chairman)

WARREN SNOWDON JP (Member)

Sitting in public in North Shields on 4 June 2008

The Appellant did not appear

Paul Murphy, counsel instructed by the Acting Solicitor for HM Revenue & Customs, for the Respondents

© CROWN COPYRIGHT 2008

DECISION

The Appeal

The Appellant was appealing against the Respondents' decision on review dated 8 January 2007 refusing restoration of a Mercedes Sprinter 311, registration number KP52 CXX (hereinafter the vehicle).

The Appellant's grounds of Appeal were as follows:

"I am not in dispute of the tobacco neither is the two people travelling with me, Isaac Langcake and Daniel Spriggs. Customs and Excise were made aware of this. My dispute is my van. I have never smuggled any tobacco for my van to be taken. I cannot make a living without it. It is paid via a bank loan which I am still paying; and having to rent a van. This is against the law surely. I had no intention of selling my tobacco as my wife smokes. I do not fit the written criteria for my van to be confiscated".

The dispute

On 14 September 2006 Customs Officers at the UK Control Zone at Coquelles, France stopped the Appellant who was driving the vehicle. He was accompanied by Mr Langcake and Mr Spriggs as passengers. The Officers found 100 kilograms of hand rolling tobacco in the vehicle, 43 kilograms of which were concealed in a settee fixed to the floor of the vehicle, and 600 cigarettes. The Appellant and his passengers declined to be interviewed. The Customs Officers were satisfied that the hand rolling tobacco was held by the Appellant and his passengers for commercial purposes. They, therefore, seized the vehicle and excise goods. On 15 September 2006 the Appellant requested restoration of the tobacco and vehicle which was refused by the Respondents. On 24 November 2006 the Appellant asked for a review of the decision refusing restoration of the vehicle which was carried out by Mr Crouch who upheld the non-restoration decision. On 16 January 2007 the Appellant appealed to the Tribunal which was stood over pending determination of condemnation proceedings before the East Kent Magistrates.

On 26 November 2007 the East Kent Magistrates following a hearing at which the Appellant attended condemned the vehicle and excise goods as forfeit.

The issue in dispute was whether Mr Crouch's refusal to restore the vehicle was a decision which no reasonable body of Commissioners could have arrived at. The jurisdiction of the Tribunal was to find the primary facts and to decide whether in the light of those findings Mr Crouch's decision was reasonable. In order for the decision to be reasonable Mr Crouch must have considered all relevant matters and disregarded irrelevant matters.

The Hearing

The Appellant did not attend the hearing. We decided to proceed in his absence because we were satisfied that he had been duly notified of the hearing, and he provided no explanation for his non-appearance.

We heard evidence from Mr Crouch, the reviewing officer. The Respondents supplied a bundle of documents which we received in evidence.

Our Findings of Fact

We make the following findings of fact:

(1) On 26 November 2007 the East Kent Magistrates found that the vehicle was used for the commercial importation of excise goods.

(2) The quantity of 100 kilograms of hand-rolling imported was thirty three times the guide level of three kilograms specified in the REDS regulations. Quantities above the guide level were indicative of commercial importations.

(3) The Appellant and his passengers concealed 43 kilograms of the hand rolling tobacco in a settee. The Appellant gave misleading information to the Customs Officers about the receipts held for the purchase of the tobacco.

(4) We disregarded the Appellant's assertions that his share of the tobacco was intended for his wife and that he was unaware that his passengers had concealed the 43 kilograms of tobacco. He did not relay these matters to the Customs Officers when stopped. His assertions were not tested by cross-examination at the Tribunal because of his failure to attend.

(5) The Appellant intended to sell the 100 kilograms of tobacco at a profit.

(6) The value of the vehicle when seized was around £4,000. The excise duty payable on 100 kilograms of hand rolling tobacco was £11,029.51.

(7) The Respondents had no record of any previous importations of excise goods for commercial purposes by the Appellant.

(8) The Appellant suffered no exceptional hardship as a result of the seizure of the vehicle. We took no account of the contents of the Appellant's letter dated 24 November 2006 which suggested that he would have problems running his business without a vehicle and as a result experience severe financial difficulties. The Appellant supplied no documentary evidence to support his claim of hardship except a bank statement ending 27 December 2006 which was in credit. Further he did not attend the Tribunal to support his claim with oral testimony.

Mr Crouch's Review Decision

Mr Crouch took into account the quantity of tobacco imported, the Appellant's failure to produce all the receipts for excise goods when requested by the Customs Officers, and the concealment of tobacco in arriving at his conclusion that the tobacco was to be sold on at a profit. He considered that non-restoration of the vehicle was proportionate to the scale of the unlawful importation perpetrated by the Appellant, even though the Appellant was a "first offender". He decided that the Appellant would not suffer exceptional hardship arising from the seizure of the vehicle. Mr Crouch had read the Appellant's letter dated 24 November 2006 but discounted its contents because they were not supported by documentary evidence. Mr Crouch pointed out that the Appellant had not taken up the invitation to provide additional information which was set out in the letter informing the Appellant about the review process.

We find that the facts taken into account by Mr Crouch were relevant to the non-restoration decision. Further there was no evidence that Mr Crouch took into account some irrelevant matter or disregarded something to which he should have given weight in coming to his decision on the 8 January 2007.

Decision

We are satisfied for the reasons set out above that the Respondents' decision on review dated 8 January 2007 refusing restoration of a Mercedes Sprinter 311, registration number KP52 CXX was reasonably arrived at within the meaning of section 16(4) of the Finance Act 1994. We, therefore, dismiss the Appeal.

The Respondents applied for costs of £500 on the ground that the Appellant had given no explanation for his non-attendance. We find that the Appellant misused the procedures of the Tribunal, and ordered him to pay costs of £500.

MICHAEL TILDESLEY OBE

CHAIRMAN

RELEASE DATE: 24 June 2008

MAN/