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You are here: BAILII >> Databases >> First-tier Tribunal (Tax) >> Fayed v Revenue & Customs [2009] UKFTT 125 (TC) (09 June 2009) URL: http://www.bailii.org/uk/cases/UKFTT/TC/2009/TC00093.html Cite as: [2009] UKFTT 125 (TC)

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[2009] UKFTT 125 (TC)

TC00093

EXCISE DUTY- 10.10kg of royal jelly honey (brought on a visit to Egypt) – advised could only bring in 1 KG – failed to apply to magistrates – honey deemed forfeit - two reviews refusing to return honey -subsequently transpired that Egyptian honey could not be imported under the product of animal origin (third country imports) (England) regulations 2006 – officer acted reasonably - case dismissed

MANCHESTER TRIBUNAL CENTRE DR GALAA FAYED Appellant - and - THE COMMISSIONERS FOR HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: David S Porter Judge

Mrs Marjorie Kostick member

Sitting in public in Birmingham on 22 May 2009

The Appellant appeared in person

Mr James Puzey of counsel instructed by the acting solicitor for the Commissioners for H M Revenue and Customs, for the Commissioners

© CROWN COPYRIGHT 2009


 


DECISION
1. Dr Galaa Esmat Abdel-Rahman Fayed (the Appellant) appeals against the review by G Crouch contained in a letter dated 27 August 2008 refusing to return 10.10 kilograms of Egyptian royal jelly honey. The Appellant says that the honey was purchased for his personal consumption. The Respondents say that the goods had been declared forfeit under section 139(6) and Schedule 3 of The Customs and Excise Management Act 1979 in this review the honey is a prohibited product under The Products of Animal Origin (Third Country Import) (England) Regulations 2006. (the Regulations)
2. Mr James Puzey 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.

The facts

3. The Appellant arrived at Birmingham airport on a flight via Frankfurt from Alexandria Egypt. When his bags had been examined under the baggage x-ray they revealed 10.10 kilograms of Egyptian royal jelly honey. Mark Jackson the intercepting officer forfeited the honey as the Regulations indicated that not more than I kilogram could be brought into the country by an individual for his personal consumption. We were told by the Appellant that he had 3 jars of the honey; one containing 5 kilograms and the other two containing 2.5 kilograms. The honey was deemed forfeit as the Appellant had not applied for the case to be heard in the magistrate's court in Birmingham within one month of the seizure. The Appellant asked for the honey to be restored in letter dated 20 July 2007. The Respondents refused the request in a letter dated 9 October 2007 and the Appellant requested a review in a letter dated 7 November 2007. In their review letter of 28 November 2007 the Respondents refused to restore the honey. Mr Puzey conceded at the hearing that that review letter was incorrect as it made no reference to the Regulations. The Appellant appealed that review to the tribunal and the matter came before Lady Mitting on 24 June 2008. Mrs Marjorie Kostick was the member at that hearing and Lady Mitting adjourned the hearing because the Appellant had said that the honey had been destroyed without him having had the opportunity to have it tested. Lady Mitting gave a direction that Mr Crouch and Mr Jackson should appear at the adjourned hearing. (In view of Mrs Kostick's appearance at the earlier hearing the Judge asked if the parties objected to her appearing at this hearing. Both parties confirmed that they had no objection to her appearing in this tribunal).Although no review was ordered at that hearing, the Respondents carried out a further review namely the one on 28 November 2008 referred to above. In his review letter Mr Crouch said

"The law is quite specific on the importation of food products in the personal luggage of a traveller. The Products of Animal Origin (Third Country Import) (England) Regulations 2006 Regulation 4(7)(iv) provides that :

(c).products in the personal luggage of a traveller if they are intended for his personal consumption or which are sent by post or carrier (otherwise than by way of trade or as a trade sample) and addressed to a private individual in England, if they are intended for his personal consumption, and if they-

(iv) do not come from a third country or part of a third country from which their importation is prohibited by any instrument in Schedule 1.

Honey is such a product whose importation into the UK is prohibited when carried in a traveller's baggage. Therefore, for me to even contemplate restoring the honey to you, irrespective of the use to which it would be put, would be ultra vires."

The Law

4. Condemnation proceedings

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.

The Products of Animals Origin (Third Country Imports) (England) Regulations 2006

Exemption for authorised products and personal imports.

Section 4.

(7) Part 3, with the exception of regulation 25, and parts 4 to 9 do not apply to-

(c) products in the personal luggage of a traveller if they are intended for his personal consumption or which are sent by post or carrier (otherwise than by way of trade or as a trade sample) and addressed to a private individual in England, if they are intended for his personal consumption, and if they –

(i) are not meat ,meat products, milk or milk products;

(ii) do not exceed one kilogram in weight;

(iii) come from a third country or part of a third country from which their importation is permitted in accordance with a list drawn up by an instrument in Schedule 1; and

(iv) do not come from a third country or part of a third country from which their importation is prohibited by any instrument in Schedule 1.

Schedule 1

Part VIII Miscellaneous Products

Third countries from which products covered by Council Directive 92/118/EEC may be imported

4. Commissioners Decision 2003/812/EC(PJ No.l305 22.11. 2003 p17) as amended by Commissioners Decision 2004 /19/EC (OJ no.L5,9.1.2004 p84)

The Annex to Commissioners Decision 2003/812/EC is a list headed with various meat types and honey and provides a list of the countries from which those items may be imported marked with an X. Honey is not marked with an X in the list for Egypt and cannot therefore be imported into the United Kingdom.

Submissions

5. Mr Puzey accepted that the first review dated 28 November 2007 refusing to restore the honey was incorrect as it referred to the right for the Appellant to bring in 1Kilogram of honey for his personal consumption. After the adjourned hearing of 24 June 2008 the Respondents took it upon themselves to re-review the application for restoration. Mr Crouch indicated that honey could not be brought into the United Kingdom at all if it came from Egypt under the Regulations section 4(7)(iii). That is the end of the matter. If that is not right the Appellant could not claim that the honey was for his personal consumption as he had not appealed to the magistrates court in Birmingham within 1 month of the importation, as he had been notified to do by the officer at the time of the seizure. There was no good reason why he had not so applied as he had confirmed at the hearing that he only needed to send a stamped addressed envelope. As the honey was deemed forfeit it was open to the Respondents to destroy it without further reference to the Appellant. In the circumstances the second review of 27 August 2008 had clearly identified the reasons for the seizure and Mr Crouch had acted reasonably in coming to his decision and the appeal; should be dismissed.

6 Dr Fayed submitted that he had waited two years to be told that his honey could not be restored. He had been frustrated to lean that the honey had been destroyed without reference to him. He had had to employ a medical locum to stand in for him on each occasion that he had to attend the tribunal and he felt he had been misled by the Respondents at the time of the seizure and the first review. Had he been told originally that the honey could not be imported from Egypt he would not have pursued the matter.

The decision

6. We have considered the facts and the law and have decided that Mr Crouch has acted reasonable in refusing to restore the goods. It is clear from the law presented by Mr Puzey that honey cannot be imported into the United Kingdom from Egypt. Consequently this tribunal does not need to hear evidence as to whether the Appellant acquired the honey for his personal consumption. If we had been required to consider that matter we would have found that the Appellant had no good reason for not applying to the magistrates' court in Birmingham for the matter of the seizure to be contested. In those circumstances it would be an abuse of process for this tribunal to hear evidence as to the honey having been purchased for his personal consumption. We are concerned, however, that unnecessary expense has been incurred by the Appellant and that he ought to be awarded costs at least equivalent to the cost of the one of the locums. Mr Puzey objected to our proposals on the basis that the Appellant had lost the appeal and that Mr Crouch had acted properly. We did not accept that as the Respondents had misinterpreted the law and as a result there had been two hearings and two reviews. We mistakenly believed that the tribunal was governed by rule 10 (5) of The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. This was not correct as the matter was started, listed and part heard before the 1 April when those rules came into affect. As a result we award costs of £500 to the Appellant on the basis that there should have been no need for two hearings or indeed a hearing at all

TRIBUNAL JUDGE
Release Date:

MAN/08/8128