United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01132.html
Cite as: [2008] UKVAT(Excise) E01132, [2008] UKVAT(Excise) E1132

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Maryam Mohammad Osman v Revenue & Customs [2008] UKVAT(Excise) E01132 (06 August 2008)

E01132

EXCISE DUTIES ... large quantities of cigarettes found in Appellant's car and home — no UK duty paid — cigarettes and car seized — restoration of car refused — whether review upholding refusal reasonable — yes — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

MARYAM MOHAMMAD OSMAN Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Colin Bishopp (Chairman)

Marjorie Kostick FCA CTA

Sitting in public in Birmingham on 22 July 2008

The Appellant did not appear and was not represented

Nicholas Brown, counsel, instructed by the Solicitor and General Counsel for HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2008


 


DECISION

1. In this appeal Maryam Osman challenges the Commissioners' decision, on review, not to restore to her a Renault Megane car which was seized from her on 7 July 2007.
2. Mrs Osman did not attend the hearing, and she was not represented, but she had written to the tribunal asking that the appeal be heard in her absence since she would be unable to attend. She specifically stated that she did not want the hearing postponed in order that she could attend on a later occasion. In those circumstances we decided to proceed in her absence. The Commissioners were represented by Nicholas Browm of counsel. We heard no oral evidence but had the unchallenged statements of 11 officers of HM Revenue and Customs, including Mrs Helen Perkins, the officer who undertook the review and made the decision against which Mrs Osman now appeals.
3. There does not seem to be any dispute that on 7 July 2007 officers visited a convenience store called "Roman Shop" in Burton on Trent. They searched the shop and discovered, beneath the counter, 1,700 cigarettes whose packets did not bear markings indicating that UK duty had been paid on them. Outside the shop was Mrs Osman's car. The officers ascertained that Mrs Osman had a connection with the shop – she worked there on Saturdays and the proprietor, it later emerged, was her boyfriend. However, the proprietor denied any knowledge of the car. It was unlocked and when the officers searched it they discovered that it contained 17,100 cigarettes, all in packets without UK duty paid markings. Mrs Osman, who had until then not been present, arrived soon after. The officers informed her that they were seizing the cigarettes and the car (they also seized the 1,700 cigarettes found in the shop). They then carried out a search of Mrs Osman's home and discovered a further 15,200 cigarettes in packets without UK duty paid markings, and they too were seized.
4. Mrs Osman's case, as she put it to the officers when they spoke to her on 7 July 2007 and as she has put it in letters written on her behalf since then, is that she lent her car to an acquaintance, a person she met at an "English as a foreign language" course, who was moving home and needed a vehicle to transport some small articles, and that she had allowed the same acquaintance to store some articles at her home while he was in the process of moving. She did not know, and did not ask, precisely what was being transported and stored, and was wholly taken by surprise when she discovered that cigarettes had been found. The acquaintance had returned the keys to her car and home, but had then disappeared and she had not seen him since.
5. Neither Mrs Osman nor the person she identified as the owner of the cigarettes found in her car and at her home required the Commissioners to bring condemnation proceedings in the magistrates' court in relation to the cigarettes, and Mrs Osman did not require condemnation proceedings to be taken in respect of her car. The cigarettes and the car were accordingly condemned as forfeit to the Crown: see Customs and Excise Management Act 1979, Schedule 3, paragraph 5. The car was liable to be seized, forfeit and condemned because it had been used for the carriage of goods – ie cigarettes – which were liable to forfeiture: see section 141(1)(a) of the 1979 Act. Mrs Osman does not appear to contend that the car was not properly seized but, she says, it ought to be restored to her as she was an innocent party in the matter. She has not sought restoration of the cigarettes, and nor has anyone else.
6. Mrs Osman's version of events as we have already set it out can, at best, be described as implausible, but there are other features of the case which, in our view, show that it is quite incredible. When the proprietor of the shop was first questioned by the officers, he denied any knowledge of the car which was standing outside; only when he realised that the officers were about to seize it did he identify its owner as Mrs Osman. The keys to the car were found in the shop's till. The proprietor of the shop said that he was looking after the 1,700 cigarettes found under the till for a friend. When Mrs Osman arrived and spoke to the officers she said, at first, that the cigarettes in the car were hers; later she said that she had meant to say only that the car was hers, but the cigarettes were not, but a combination of her agitated state and her poor English had confused her. But this version of events necessarily implies that the supposed acquaintance abandoned his cigarettes before he knew that the HMRC officers were interested in them, since he had by then already handed back the keys to the car and Mrs Osman's home. We have no doubt that Mrs Osman's claim that an acquaintance borrowed her car and the shop proprietor's remarkably similar claim that he was looking after goods for a friend are pure invention, designed to distance them both from cigarettes which they knew perfectly well had not borne UK duty and which, it is reasonable to infer, were destined for illicit sale in the shop.
7. The Commissioners have a discretion to restore seized goods if they think it appropriate to do so. The policy they apply in exercising their discretion is set out in detail in Mrs Perkins' letter conveying the decision she reached and, in summary, is that private vehicles used for the transport of illicit excise goods should be restored only in exceptional, first offence, cases, where the goods are to be sold on a "not for profit" basis, where the quantity is small, or where the owner of a vehicle is truly innocent of any involvement in wrongdoing. It is a harsh policy but it has been considered and approved on many occasions by this tribunal and the courts. Provided it is made fairly and reasonably and with proper regard to the facts of the case a decision based on the policy will not be disturbed by this tribunal, which has only a limited jurisdiction. It may set aside a decision such as that made by Mrs Perkins in this case only if it is satisfied that the decision was one at which the officer making it could not reasonably arrive: see section 16 of the Finance Act 1994.
8. The only reasonable conclusion to be drawn from the facts as we have described them is, as we have said, that Mrs Osman and her boyfriend were engaged in selling cigarettes which had not borne UK duty. The quantities were large. Mrs Osman, as we are satisfied, has attempted to mislead the Commissioners and the tribunal. The decision that her car should not be restored to her was not only reasonable, it was inevitable. The appeal must be dismissed. Mr Brown, rather to our surprise, did not seek a direction in respect of costs.

COLIN BISHOPP

CHAIRMAN
Release Date: 6 August 2008

MAN/008/8002