United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01150.html
Cite as: [2008] UKVAT(Excise) E01150, [2008] UKVAT(Excise) E1150

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Paul Newton v Revenue & Customs [2008] UKVAT(Excise) E01150 (24 November 2008)

E01150

Excise duty- restoration of goods – appeal against review decision – 3920 cigarettes brought to UK from Majorca – query new evidence – condemnation proceedings had declared the goods commercial – appeal dismissed

MANCHESTER TRIBUNAL CENTRE

PAUL NEWTON Appellant

and

COMMISSIONERS OF REVENUE AND CUSTOMS Respondents

Tribunal: Elsie Gilliland (Chairman)

Carole Roberts (Member)

Sitting in public in Manchester on 22 September 2008

The Appellant in person

Miss Katy Jones counsel instructed by the Solicitor and General Counsel for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2008
 

DECISION
1. The appeal is that of Paul Newton (the Appellant) against a decision of Customs in a review letter dated 17 August 2007 to uphold the decision made not to restore excise goods namely 3920 JPS Silver cigarettes (the goods) which had been seized from the Appellant on 17 May 2007
2. It is not in dispute that the Appellant who was traveling with two friends arrived at Manchester Airport on 17 May 2007 from Majorca. All three were intercepted by Customs and were separately interviewed. We are not concerned with the position regarding the two companions.
3. There is a dispute relating to the interview with the Appellant and we refer to that later in this decision. At this stage we merely say that the goods were then seized by Customs and the Appellant left without them.
4. We have copy correspondence before us in the bundle of documents produced by Customs. The Appellant had requested from Customs the restoration of the goods and this was refused in a letter from a senior officer dated 3 July 2007. The Appellant then wrote to Customs on 4 July 2007 asking for a review and on 5 July 2007 wrote again with reference to medical evidence. This led to the review letter of 17 August 2007.
5. The Appellant had required condemnation proceedings to be taken appealing the legality of the seizure. This was not known to the officer who undertook the reconsideration on 3 July 2007 though it was known to the review officer Julie Wiggs at the time of her decision. At that time a condemnation hearing before the magistrates had not taken place. In papers before us at the hearing there is a copy of the order for condemnation in the Trafford Magistrates Court dated 12 March 2008. The goods were adjudged as forfeit and the reasons given for forfeiture were:

"The court after evidence, finds the items were held not for personal use, but for commercial gain."

In addition the Appellant was ordered to pay £1,300 to Customs.

6. There was a further hearing before another tribunal chairman on 18 September 2008. The Appellant had issued a witness summons and sought to require the attendance in person at the appeal hearing of the officer who had conducted the interview on 17 May 2007. The direction of the chairman was to set aside that witness summons and accordingly the interviewing officer who had already given evidence at the condemnation proceedings and who was now on long term sick leave did not appear before us. Mrs. Wiggs, the review officer, did attend and gave evidence.
7. Other matters have been drawn to our attention arising in the period between the date of the interview and the appeal hearing. The interview notes of which a manuscript copy is in the bundle were not signed by the Appellant. He has disputed their accuracy and pursued a complaints procedure. We have a copy of a letter dated 7 March 2008 from Mrs. H Devine, Complaints officer with Customs Detection Complaints – Northern and Central section at Ipswich. She dealt with a series of points relating to the officer's notebook and areas of complaint of the Appellant. She indicated should there be any dissatisfaction with her response the next step for the Appellant would be to request the Independent Adjudicator or (via an M.P.) the Parliamentary Ombudsman to look into the matter. The Appellant pursued also a data protection complaint as to the processing by Customs of personal information. This was considered by the Information Commissioner's Office and it is apparent from a copy letter produced to us dated 22 February 2008 that the ICO notified Customs of an adverse assessment and considered the matter as then closed.
8. So far as the legality of the seizure is concerned the matter has been determined in the condemnation order and is complete and binding and cannot be an issue before this tribunal. The appeal we are determining is accordingly that of the Appellant against the review decision not to restore the forfeited goods. The Finance Act 1994 s.16 (1) gives to tribunals power to review the decision of Customs in a number of administrative areas (ancillary matters) including the one before us. The role of the tribunal under s.16 (4) of the said Act is to consider whether the review officer's decision is one which could not reasonably be arrived at. In testing this we examine whether the officer has taken into account all relevant matters excluded those to which weight should not be given and has properly applied the law as set out in the Wednesbury principles (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223). Should we find the decision unreasonable the tribunal's powers as set out in s.16 (4) (a) to (c) are limited though we can require a further review (s.16 (4)(b).) At the conclusion of the hearing this is what the Appellant said he was seeking.
9. In presenting his case the Appellant submitted that there was new evidence of which Mrs. Wiggs had not been aware and that at the time of her decision she did not have all the facts to make an unbiased decision. He made clear to the tribunal his dissatisfaction with the attendance with the interviewing officer and with the written notes she produced which he had not been able to read, amend or add to. Those notes referred to the setting up of the interview and included the dialogue between the interviewing officer and the Appellant on a number of initial questions raised by the officer. The Appellant had however not remained for a full interview and his contention had been that the notes did not make it clear that he did not wish to stay longer for interview because he felt unwell and also intimidated by a customs officer. (There had been an additional officer nearby and Customs said that this was a health and safety matter). He sought also to establish to the tribunal that there were exceptional circumstances and restoration was appropriate.
10. In her responses in examination-in-chief and in cross-examination Mrs. Wiggs was clear that there was no evidence arising at the hearing which would have affected her decision either in the submissions of the Appellant or in the copy letters relating to the complaints procedures he had followed and that in substance those letters merely confirmed what the Appellant had put to her in correspondence though perhaps in stronger terms to the complaints team. We have noted in a letter of 5 June 2007 sent to Customs and mentioned by the review officer in her evidence that the Appellant had referred to "his exhaustion, fatigue, stress and tieredness (sic) and to some extent intimidated by customs" at the time he was interviewed.
11. In coming to our decision we have asked ourselves whether Customs on review reached a decision which no reasonable Customs officer could have reached; whether they took into account all relevant considerations and left out of account all irrelevant ones. In addition Customs must have acted on a correct understanding of the law. We do not consider that the Appellant may use this appeal to re-open the decision of the magistrates to declare the goods legally seized. That was a fact-finding body and it found that the goods were purchased for a commercial purpose and were not for own use.
12. We find nothing to support the Appellant's contention that the decision of the review officer was based on the officer's notebook which he had asserted contained false allegations and also where things he had said were not noted down. We find Mrs. Wiggs an honest witness and we are satisfied with the evidence she gave that at the time of her decision she was aware that the Appellant had said that he was unwell and had issues with Customs officers. In the review letter she had set out the facts and extracts from the relevant legislation before giving out the reasons for her decision. She did not consider the legality or correctness of the seizure itself and this we agree was properly a matter for condemnation proceedings. She did however include in the factors taken into account whether the goods were held on a not-for-profit basis and it was her view that this had not been claimed. In correspondence and at the hearing the Appellant has claimed own use but that issue has been determined. We do not have a transcript of the condemnation proceedings simply the order but from the evidence at the hearing the Appellant has not to our mind established that all these matters were not aired at the condemnation proceedings before the decision was made.
13. The Appellant submitted also that there were exceptional circumstances which would make a restoration of the goods appropriate. In her review letter the officer stated that there had not been a procedural error such as would constitute an exceptional circumstance. The general policy of Customs was that seized goods would not be restored and Mrs. Wiggs said that she saw no circumstances for this policy to be disapplied in the instant case. In evidence she acknowledged that the interview notes had not been signed but this she said was an unintentional oversight on the part of the interviewing officer and we accept this explanation. The Appellant did not in fact remain for further questions and left the interview.
14. In her evidence to the tribunal Mrs. Wiggs did not accept that there were exceptional circumstances. In our view the only factors subsequent to the review letter that is the condemnation proceedings and the following-up of complaints procedures by the Appellant did not introduce any new issues for consideration such as that the goods were established as being for own use or that it would constitute an injustice to the Appellant not to restore the goods. Nor do we consider that any human rights issues arise. We are satisfied that the Appellant's legal rights were preserved throughout and the appropriate judicial procedures were available to him.
15. The appeal is dismissed. No application has been made for costs and we give no direction as to costs.
Elsie Gilliland CHAIRMAN
Release date: 24 November 2008

MAN/2007/8060