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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Carlsberg UK Ltd & Anor v HM Revenue and Customs [2012] EWCA Civ 82 (08 February 2012) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/82.html Cite as: [2012] EWCA Civ 82 |
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ON APPEAL FROM THE UPPER TRIBUNAL (TAX AND CHANCERY CHAMBER)
The Hon Mrs Justice Proudman
Appeal Nos FTC/23/2010 and FTC/24/2010
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE PITCHFORD
and
LADY JUSTICE RAFFERTY
____________________
(1) CARLSBERG UK LIMITED (2) INBEV UK LIMITED |
Appellants |
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- and - |
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THE COMMISSIONERS FOR HER MAJESTY'S REVENUE AND CUSTOMS |
Respondents |
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Hearing date: 17 January 2012
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Crown Copyright ©
The Master of the Rolls:
(1) Whether, pursuant to the relevant provisions of ALDA and the Beer Regulations 1993 [SI 1993/1228] ('the Regulations'), the appellants were entitled (in relation to the periods covered by HMRC's assessments at issue in these appeals) to calculate the amounts of duty payable on beer by reference to the volume of beer held in each container.
(2) In the event that the appellants were so entitled, whether they were then entitled, having calculated the duty payable per container, to disregard any fractions of a penny produced by such calculations, in accordance with section 137(4) of CEMA.
A summary of the facts and issues
The relevant legislative provisions: ALDA
'(3) The Commissioners may make regulations prescribing the means to be used for ascertaining for any purpose the strength, weight or volume of any liquor, and any such regulations may provide that in computing for any purpose the strength of any liquor any substance contained therein which is not alcohol or distilled water may be treated as if it were.
(3A) Without prejudice to the generality of subsection (3) above, regulations under that subsection may provide that for the purpose of charging duty on any … beer … contained in any bottle or other container, the strength, weight or volume of the liquor in that bottle or other container may be ascertained by reference to any information given on the bottle or other container by means of a label or otherwise or to any documents relating to the bottle or other container.'
'Container' is defined in section 1(1) of CEMA as including 'any bundle or package and any box, cask or other receptacle whatsoever.'
'Subject to the provisions of this Act—
(a) the duty on beer produced in, or imported into, the United Kingdom shall be charged and paid, and
(b) the amount chargeable in respect of any such duty shall be determined and become due,
in accordance with regulations under section 49 below and with any regulations under section 1 of the Finance (No 2) Act 1992.'
The relevant legislative provisions: the Regulations
'(1) Save where any duty suspension arrangements apply to the beer, the duty point (the time when the duty is payable by a person) shall be the time when the beer is charged with the duty by section 36(1) of the Act, that is to say, the time when it is imported into the United Kingdom or, as the case may be, produced in the United Kingdom.
…
(2) If any duty suspension arrangements apply to the beer, the duty point shall be the earlier of-
(a) the time when the duty ceases to be suspended in accordance with those arrangements;
…. and
(c) the time when the duty ceases to be suspended by virtue of paragraph (3) below.
(3) The duty ceases to be suspended when-
….
(c) the beer is consumed; or
(d) the beer leaves any registered premises ….'.
'(1) Save, in the case of a registered holder, as the Commissioners may otherwise direct, every person who is registered or was or is required to be registered in accordance with these Regulations shall, in respect of every period of a month furnish the Commissioners, not later than the 15th day of the month next following the end of the period to which it relates, with a return on a form approved by the Commissioners showing the amount of duty payable by him …
(2) Returns shall be furnished at such place as the Commissioners may direct and, unless furnished in person when that place is open to the public for business, may be furnished in such other manner as the Commissioners may allow.'
'(1) Subject to paragraph (2) and save as the Commissioners may allow, the duty shall be paid at the duty point.
(2) Where the person liable to pay the duty is a registered brewer or registered holder, save as the Commissioners otherwise direct, the duty shall be paid not later than the 25th day of the month next following the month containing the duty point in relation to the duty.'
… [T]he amount of beer in any container shall be deemed to be the greater of—
(a) the amount determined in accordance with section 2 of the Act;
(b) the amount ascertained by reference to information on the label of the container of the beer; and
(c) the amount ascertained by reference to information on any invoice, delivery note or similar document issued in relation to the beer.'
The relevant legislative provisions: CEMA
'(1) Without prejudice to any other provision of the Customs and Excise Acts 1979, any amount due by way of customs or excise duty may be recovered as a debt due to the Crown.
….
(4) For the purpose of calculating any amount due from or to any person under the customs and excise Acts by way of duty, drawback, allowance, repayment or rebate any fraction of a penny in that amount shall be disregarded.'
The first issue: is beer duty calculated per container?
The second issue: to what sum was section 137(4) of CEMA applicable?
Conclusion
Lord Justice Pitchford:
Lady Justice Rafferty: