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United Kingdom VAT & Duties Tribunals (Excise) Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Honeyman v Revenue & Customs [2008] UKVAT(Excise) E01137 (01 September 2008)
URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01137.html
Cite as: [2008] UKVAT(Excise) E01137, [2008] UKVAT(Excise) E1137
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- Mr Joseph Honeyman appeals against the review by D C Hodge contained in a letter dated 8 October 2008 refusing to return the Appellant's Ford Focus registration NA53 WCU. The Appellant says that the goods (6 Kilos of hand-rolling tobacco; 1800 cigarettes; 450 cigars; 180 litres of wine; 120 litres of beer; and 6 litres of spirits) were purchased for his own use. The Respondents say that as the goods had been declared forfeit under section 139(6) and Schedule 3 of The Customs and Excise Management Act 1979 the Appellant could not claim that the goods were for his own use and as a result it was not disproportional to seize his car under section 141 The Customs and Excise Management Act 1979
- Miss E McCory of counsel instructed by the acting solicitor for the Commissioners for H M Revenue and Customs appeared for the Respondents and produced a bundle of documents to the tribunal. The Appellant appeared in person.
- Condemnation proceedings
- Miss McCory submitted that as the Magistrates Court had condemned the goods the Respondents were entitled to retain the vehicle and the reviewing officer had acted reasonably in refusing to return it. She also outlined the Commissioners' general policy in relation to the restoration of private vehicles used for the improper importation or transport of excise goods, which states that they should not normally be restored. The policy is intended to be robust so as to protect legitimate UK trade and revenue and prevent illicit trade in excise goods. However, vehicles may be restored at the discretion of the Commissioners, subject to such conditions (if any) as they think proper (eg fees) in circumstances such as the following:
- She referred to Lord Phillips decision in Lindsay v Customs and Excise Commissioners [2002] STC 588. That case related to the purchase of goods for members of a family and makes a distinction between commercial smuggling and importing goods for social distribution to family or friends in circumstances where there is no attempt to make a profit. In the latter circumstances proportionality applies and the tribunal and Courts have to decide whether the value of the vehicle when set against the circumstances of the importation and the amount of the duty avoided are such that it would be disproportional to keep the vehicle. Lord Phillips states at paragraphs 62 and 63 states:
- Mr Honeyman said that his father had bought him the car and he had to pay him back, as the car had cost £4275 and the duty payable was only £1634.47, the car should be returned to him. He had bought the goods for his own use and not to sell at a profit.
- As the goods had been condemned by the Magistrates Court in circumstances where the Appellant chose not to attend, it is not open to find that the goods were purchased for the Appellant's own use. As a result the goods must have been obtained with a view to selling the same at a profit. In the light of Lindsay v Customs and Excise Commissioners it is not disproportional for the Respondents to retain the vehicle. We therefore find that the reviewing office acted reasonabley in refusing to return the vehicle. We are advised that the Appellant appeared before the tribunal on 14 May 2008 when that hearing had been adjourned pending the completion of condemnation proceedings. It had not been possible to contact the Appellant to advise him of the adjournment and he attended with his colleague and they both had to have the day off work. I award costs to the Appellant in relation to that hearing of £125
E01137
EXCISE DUTY- Goods condemned at Magistrates hearing- appellant did not attend and did not appeal to Crown Court - as goods condemned tribunal no jurisdiction to hear argument as to own use – as goods had been smuggled no grounds for vehicle to be returned- proportionality not applied- case dismissed
MANCHESTER TRIBUNAL CENTRE
JOSEPH HONEYMAN Appellant
HER MAJESTY'S REVENUE AND CUSTOMS Respondents
Miss K Ramm member
Sitting in public in North Shields on 23 July 2008
Appellants appeared in person
Miss E McClory of counsel instructed by the acting solicitor for the Commissioners for
H M Revenue and Customs, for the Commissioners
The facts
3. The Appellant's Ford Focus registration NA53 WCU was seized on his return from France on 25 July 2007. The Appellant requested that the Magistrates Court should decide whether the goods should be condemned. He did not attend the hearing as he said that he did not believe he would get a fair hearing nor could not afford the expenses both of attending and potentially being liable to pay the Respondents cost if he lost the case. The case was heard on the 6 March 2008 and the goods were condemned. The Appellant appealed to the Crown Court but decided not to proceed with his application on the same grounds as he had not proceeded in the Magistrates Court. As a result this Tribunal cannot hear evidence from the Appellant to the effect that the goods were purchased for his own use, as that matter has been decided in the condemnation proceedings. The Appellant said that he had been stopped before-"Yes, by an oldish man, he just went round it and we told him what we had and he told us we could go". At the end of the review letter of 8 October 2007 is a list of the trips made by the Appellant since October 1998. The letter identifies 18 trips: his cars have been seized in May 2000, December 2000 and May 2001, and his goods have been seized 7 times. No further evidence was given to the tribunal by the Appellant as to whether there were exceptional circumstances as to why the car should be returned to him
The Law
Section 139(6) of the Customs and Excise Management Act 1979
Schedule 3 to this Act shall have effect for the purpose of forfeitures, and of proceedings for the condemnation of any thing as being forfeited, under the Customs and Excise Acts.
Schedule 3
…… 3. Any person claiming that any thing seized as liable to forfeiture is not so liable shall, within one month of the date of the notice of seizure or, where no such notice has been served on him, within one month of the date of the seizure, give notice of his claim in writing to the Commissioners at any office of customs and excise.
………5. If on the expiration of the relevant period under paragraph 3 above for the giving of notice of claim in respect of any thing no such notice has been given to the Commissioners, or if, in the case of any such notice given, any requirement of paragraph 4 above is not complied with, the thing in question shall be deemed to have been duly condemned as forfeited.
………6. Where notice of claim in respect of any thing is duly given in accordance with paragraphs 3 and 4 above, the Commissioners shall take proceedings for the condemnation of that thing by the court, and if the court finds that the thing was at the time of seizure liable to forfeiture the court shall condemn it as forfeited.
……..7. Where any thing is in accordance with either of paragraphs 5 or 6 above condemned or deemed to have been condemned as forfeited, then, without prejudice to any delivery up or sale of the thing by the Commissioners under paragraph 16 below, the forfeiture shall have effect as from the date when the liability to forfeiture arose.
Submissions
• If the excise goods were destined for supply on a " not for profit" basis, for example, for re-imbursement
• If the seized goods were destined for supply for profit, the quantity of excise goods is small, and it is a first occurrence
• If the vehicle was owned by a third party who was not present at the time of the seizure, and can show that they were both innocent of and blameless for the smuggling attempt, then consideration may be given for restoring the vehicle for a fee: if in addition to being both innocent and blameless the third party demonstrates that they have taken reasonable steps to prevent the smuggling in the vehicle then consideration may be given to restoring it free of charge.
" 62. Finally it is right to bear in mind that notice is given to travellers that they are only entitled to bring back excise goods duty free if they are for their own use and smuggling can lead to the forfeiture of vessels. Anyone who uses his car for smuggling is likely to be taking a calculated risk. 63. Having regard to those considerations, I would not have been prepared to condemn the commissioners' policy had it been one that was applied to those who were using their cars for commercial smuggling, giving that phrase the meaning that it naturally bears of smuggling goods in order to sell them at a profit. Those who deliberately use their cars to further fraudulent commercial ventures in the knowledge that if they are caught their cars will be rendered liable to forfeiture cannot reasonably be heard to complain if they lose their vehicles. Nor does it seem to me that, in such circumstances, the value of the car used need be taken into consideration. Those circumstances will normally take place beyond the threshold where that factor can carry any significant weight in the balance. Cases of exceptional hardship must always, of course, be given due consideration."
The decision
David S. Porter
CHAIRMAN
Release Date: 1 September 2008
MAN/07/8089