United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01160.html
Cite as: [2008] UKVAT(Excise) E1160, [2008] UKVAT(Excise) E01160

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Shaun Beeston v Revenue & Customs [2008] UKVAT(Excise) E01160 (22 December 2008)

E01160

EXCISE DUTY – civil penalties – taking in and use of red diesel on public roads – whether Appellant had reasonable excuse for conduct – no – appeal dismissed

MANCHESTER TRIBUNAL CENTRE

SHAUN BEESTON Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: David Demack (Chairman)

Sitting in public in Manchester on 5 December 2008

The Appellant did not appear and was not represented

Mr. Nigel Bird of counsel, instructed by the Solicitor and General Counsel for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2008
 


DECISION

1. The Appellant, Mr. Shaun Beeston appeals against a decision on review by the Commissioners for Her Majesty's Revenue and Customs ("the Commissioners") confirming two civil penalties each of £250 imposed for his allegedly having taken in and used rebated heavy oil in a road vehicle.
2. In his notice of appeal, Mr. Beeston stated his grounds of appeal as, "I did not put the red diesel in the said vehicle. Would you please reconsider the decision as I am my mother's carer and only receive £48 wk plus any allowed work up to £80 per wk, which is only occasionally. Or can I pay £5 per wk thank you."
3. Mr. Beeston did not appear at the hearing, nor was he represented. Having no explanation for his non-appearance, I determined to proceed in his absence under rule 26(2) of the VAT Tribunals Rules 1986, as amended.
4. The only evidence before me as to his case, other than his reasons for appealing, is that contained in the bundle of copy documents provided by the Commissioners. I therefore look to it to see whether it contains anything by way of expansion of Mr. Beeston's reasons for appealing. On the basis of the documentary evidence, I make the following findings of fact.
5. On 30 May 2007 a Ford Transit van registered no. R887 VLW driven by Mr. Beeston was stopped by officers of the Commissioners working with the police carrying out vehicle checks on the A53 trunk road near Market Drayton. One of the officers carried out a quinizarin test on a sample of the fuel inside the van's fuel tank and found it to contain elements of red diesel. In interview at the scene following that discovery, Mr. Beeston revealed that the van was owned by one Martin Davies, by whose firm, Shirestones Paving Slabs, he was employed as a labourer. Mr. Beeston admitted that he had be been the main person to drive it during the immediately preceding two months (presumably in the course of his employment), and that he was the person who usually fuelled it. Mr. Beeston produced fuel receipts for the van covering the period March to May 2007. They showed purchases of ordinary fuel.
6. Mr. Davies was interviewed under caution on 8 June 2007. He explained that he had owned the van for approximately 14 months, but "handed it over" to Mr. Beeston on 7 March 2007. He added that his firm had use for red diesel as it operated loading shovels and diesel mixers, and purchased it in 5 gallon drums which it left for use on the sites it was working.
7. The Commissioners seized the van and offered to restore it to Mr. Davies on payment of £1,120. Mr. Davies did not take up the offer, so that the vehicle was condemned as forfeit on 9 August 2007. On 3 August 2007 Mr. Beeston was notified of the assessment on him of the two civil penalties. In a letter to the Commissioners' review team of 20 August 2007, Mr. Beeston said, "I was stopped by officers of the Ministry on Wed 30-5-07 at 8am on the way to Market-Drayton. I had borrowed the van, registration R887VLW, from a friend (I am on the Insurance policy) unaware that there was red diesal in the vehical. I put 5 litres of white diesal from a jerry can that morning as I saw I was running low on diesal. My intentions was to fill up at Morrisons, Market Drayton. I use this garage on a regular basis (you should have previous receipts off me which I handed to your officers). There was several people who had access to the van for delivers and use. I do not know who put the red deisal in the van's tank. I do hope this matter can be resolved as I am on a limited income and it was not my fault." On 18 September 2007 the Commissioners confirmed the two penalties.
8. Against that factual background, it is for Mr. Beeston to establish that he has a reasonable excuse for the taking in and using of rebated heavy oil. He must do so against the following legislative background. By section 12(2) of the Hydrocarbon Oil Duties Act 1979 ("HODA") rebated fuel may not be used as fuel for a road vehicle or be taken into a road vehicle as fuel. By section 13(1) of HODA where a person uses fuel in contravention of section 12(2) such use shall attract a penalty under section 9 of the Finance Act 1994. Section 9(2)(b) of the 1994 Act provides that each such contravention shall attract a penalty of £250. By section 10(1) of the 1994 Act the conduct complained of shall not give rise to a penalty if the person whose conduct it is satisfies the Tribunal that there is a reasonable excuse for the conduct.
9. Mr. Nigel Bird, counsel for the Commissioners, submitted that Mr. Beeston has put before me nothing which might properly be considered a reasonable excuse for his having used red diesel as fuel for the van or for having taken red diesel into it. As a brief guide to what might constitute such an excuse, he relied on the observations of the tribunal in Andrew Roberts v The Commissioners (2005) Decision No. E0928 where it said that the expression "reasonable excuse is strictly construed and essentially relates to conduct outside the control of the appellant", and found that carelessness on the part of the appellant in that case was incapable of amounting to a reasonable excuse.
10. Mr. Bird maintained that on the evidence the best case that Mr. Beeston could advance was that when he fuelled the vehicle on the morning of 30 May 2007 with 5 litres of fuel from a jerry can, he inadvertently put red diesel into the fuel tank of the van (and the fact that Mr. Davies accepted that there was red diesel available to fuel it). Against that background, Mr. Bird submitted that Mr. Beeston's case differed not from that of Mr. Roberts in the case referred to in the last preceding paragraph, and should likewise be dismissed.
11. I have nothing to add to the submissions of Mr. Bird, which I accept in their entirety, and thus I dismiss the appeal. I make no direction as to costs.

DAVID DEMACK

CHAIRMAN
Release Date: 22 December 2008

MAN/07/8084

MAN/08/1272