EXCISE DUTY – forfeiture of car – further review ordered – appeal against further review – whether on facts importation was commercial – inconsistencies between amounts accounted for as between travellers – challenge to accuracy of officer’s notes – burden of proof and standard appropriate – whether review should also have covered goods

LONDON TRIBUNAL CENTRE

	RICHARD JOHN TALLON	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

			Tribunal:	JOHN CLARK (Chairman)
					SUNIL K DAS

Sitting in public in London on 12 December 2003

Mark Twomey of Counsel, instructed by Santers Solicitors, for the Appellant

Mr MP Barnes of Counsel, instructed by the Solicitor for HM Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004

DECISION

1.	This is an appeal against a decision on further review not to restore the Appellant’s car, which had been seized on 9 March 2001 and, in the absence of condemnation proceedings, forfeited. The further review was directed by the Tribunal in Excise Decision E00214 (“the earlier decision”). The question of a claim for restoration of the goods arose in the present appeal, but was not referred to in the earlier decision.
2.	In the earlier decision the Tribunal directed that the Reviewing Officer should conduct a further review not taking into account a previous seizure as evidence of the Appellant’s unreliability, not taking into account that the Appellant was prone to exaggeration, and taking into account the evidence given at the hearing and such other evidence from the officers concerned as the Reviewing Officer considered necessary. At the hearing of the present appeal the Appellant gave evidence afresh. We are conscious that in considering the further review, we must take into account the evidence that the Appellant is recorded in the earlier decision as having given, and that his fresh evidence must be measured against that earlier evidence.
Background

3.	On 9 March 2001 Catherine Cox, an officer of the Commissioners, intercepted the Appellant’s car at Eastern Docks, Dover. The occupants were the Appellant, who was the driver, Mrs Tallon, and Mrs Ashmore. Mrs Cox questioned the three travellers. She recorded her questions and her answers in her notebook. (The way in which she did so was a matter of dispute, which we consider later.) The details as shown in the notebook are as follows. The time of interception is shown as 21.30. The Appellant responded that they had travelled back from Calais, and had travelled out earlier in the day. The purpose of the trip was to do some shopping, to buy some cigarettes. They had travelled only to France, not to Belgium. When asked how much excise goods they had, each of the three travellers is recorded as replying that they had 30 sleeves of cigarettes [ie 6,000 cigarettes each, a total of 18,000]. (There is a dispute as to the precise question asked; we consider this below.) In addition the Appellant said that he had 40 pouches of tobacco for his father. Each confirmed that they had no other tobacco goods. The Appellant said that he had a few wines. The car was his. He had owned it for a year and a half. They were travelling to the London area. Mrs Cox asked whether they had travelled on a day trip in the last 12 months. The Appellant replied that he and Mrs Tallon had travelled 6 weeks ago, not on a day trip but on holiday to Spain. [We ignore the question about previous seizures.] Mrs Cox asked all three whether they had been issued with a Notice 1 before. The Appellant initially thought that he had, then said that he was not sure, and then confirmed that he had. Mrs Tallon was not sure. Mrs Ashmore had not, and had not had anything seized. They confirmed that they had no illegal items with them. The vehicle was then searched. This revealed over 24,000 cigarettes in the boot area and the back of the vehicle, and wines. All three of the travellers signed the notes at 22.10 with the declaration: “The above notes are a true and accurate account.”
4.	Mrs Cox’s notes record reading a commerciality statement to the travellers. The time recorded under this is 10.25 hours, which we take to mean 22.25. The initial response was that they declined to stay for interview. The goods and vehicle were then seized. This is recorded as happening at 22.30 hours. The Appellant’s interview with Mrs Cox is also recorded as starting at 22.30 hours. The Appellant had paid for the petrol, and for the ticket. None of the receipts belonged to him. Mrs Tallon had paid for the cigarettes by credit card for 6 items (the numbers recorded in Mrs Cox’s notes) and by cash for one item. Mrs Cox referred to his earlier declaration of 30 sleeves of cigarettes, and asked who the extra cigarettes belonged to. The Appellant said that they belonged to him. Mrs Cox said, “That’s an extra 6,000 cigarettes, who for?" The Appellant replied, “No, myself and my wife 3,000 each.” He had no idea why he had not told the officer about the extra cigarettes, there were an extra 2,000 cigarettes in the back of the vehicle, not hidden. Mrs Cox recorded the brand that the Appellant as Superking blacks; this was disputed, as we consider later. He said that he smoked 80 cigarettes a day. He had no idea how much that cost him a week. He then said £140. He was not sure how long the cigarettes would last, 2 or 3 months and he might buy cigarettes in between. His monthly income was £4,500. He did not know what outgoings he had. He had £20,000 to £25,000 savings. He confirmed that it was correct that Mrs Tallon had paid for the cigarettes. He had one child as a dependant. [Again, we ignore references to the previous seizure.] He was going to smoke the cigarettes. No one had offered him money to purchase cigarettes for them. He knew that there was duty and tax payable on excise goods that were sold in the UK. Mrs Cox asked when he last travelled abroad. Her notes record the Appellant’s answer as, “3, 4 weeks ago – day trip.” (This is disputed, as we consider below.) She asked him, “Did you purchase any cigarettes or tobacco then?” He replied “No.” She then asked him whether he had travelled on a day trip before the 3 to 4 weeks. He said not; before that it had been at Christmas time to Malta. She asked him about the day trip 3 to 4 weeks ago. The Appellant’s answer is recorded as being that he only wanted to buy wine that day, there were 5 in the car, for a party. (Again, this record is disputed.) Mrs Cox recorded the reasons for seizure:
(1)	Previous seizure (for the reasons already given, we ignore this);
(2)	Underdeclaration – untrue;
(3)	Knowledge of guidance levels;
(4)	Excess MILS;
(5)	Stated on dec. 1 journey in [illegible in copy] another day trip [illegible]. (The Statement of Case records this as “Stated on dec. 1 journey in other another day trip in car”; it appears far from definite to us that this less than clear statement, not reproduced in the Witness Statement, is a proper record of what was in the notebook.)
The Appellant then wrote in the notebook, “I have read the above notes of interview are true and accurate account” [sic] and signed the notebook with the date “9/3/00”, which he amended to “01” and initialled. The notebook records the goods and vehicle being seized at 23.50 hours, and lists the excise good seized. The Appellant used expletives in commenting on the seizure. The notebook, after referring to the goods and receipt numbers, contains the note “Left controls at 23.00 hours.” It also contains the note “Correction – Officer number on C156 vehicle seizure form and warning letters should read: - 1138 not 1130.”
5.	Officer Elliott interviewed Mrs Tallon. Her answers are recorded as follows. Her goods were about 30 cartons of Superkings and the white wine. She had paid for everything, cash for the boxes and credit card for the smaller cigarette boxes on the ferry. All her goods were for her. She had bought excise goods abroad before; that had been a few weeks ago in Calais. She had bought 10 cartons of Superkings, wine and beer. Within the last 6 months, she had travelled the previous week and the week before. She had not bought excise goods that previous week, because she did not need any. She was not working; she was a housewife. [Again, we ignore reference to the previous seizure.] She was not really aware of Customs guidelines. The cost of the goods in the tobacco shop had been £2,049 and the credit card bill had been £385. The money had come from the Appellant’s bank account. It had not been from savings; it was from wages. She only had a little bit of savings. She smoked 50 a day; the brand was Superkings. Of the 10 cartons she had bought two weeks ago, she had two cartons left; they were for both of them. She did not need to travel again. Her 30 cartons would last about 4 months. She had about £5,000 savings. She had paid for her mother’s [Mrs Ashmore’s] cigarettes because it was easier; her mother would pay her when they got home. The amount was about £1,000. Mrs Tallon signed the notebook to acknowledge that Notice 1 had been issued and explained to her.
6.	Another officer interviewed Mrs Ashmore. She had last travelled abroad at Christmas to Malta. She had travelled abroad twice in the last year. She travelled regularly, at least once or twice every year. She was aware of the guidelines; as long as they were for yourself, there was no restriction. [We ignore the reference to the previous seizure.] All the Benson & Hedges were hers. Her husband also smoked. She had bought 50 cartons of Benson & Hedges that day. She expected them to last for 2 months. She smoked 30 a day. She could not tell the officer the exact amount that she had spent that day on cigarettes, as her daughter had bought them. She then said, “That’s a lie as I actually bought two packets of “slims”. Her daughter had not given her the money for buying the Benson & Hedges, as her daughter had paid for them. The officer asked whether anyone had given her daughter or son-in-law money to buy cigarettes that day. Mrs Ashmore thought that her daughter had taken some money out of Mrs Ashmore’s purse as she had not had quite enough. Mrs Ashmore had no idea how many cigarettes her daughter smoked. Mrs Ashmore was aware that excise goods were liable to duty. When asked whether she had any open cigarettes with her, Mrs Ashmore produced a packet of “Fine 120” cigarettes, recorded as being unopened. She knew that it was illegal to sell goods. The cigarettes belonging to her daughter were the Superkings. Mrs Ashmore did not know the exact amount that her daughter had spent that day. Her daughter had just paid for Mrs Ashmore’s Benson & Hedges and they would settle up when they got home. (Mrs Ashmore signed that page of the notebook as being a correct record at 23.04 hours, and the interview is recorded as continuing at 23.08 hours.)  Mrs Ashmore would get the money to pay her daughter from the bank. This would be from her savings. She did not know what was in her savings, about £1,000. She had no other savings accounts. Her monthly income was about £600. She could not immediately say what her monthly outgoings were; £300 per month on food and £120 per month for gas, electric, TV licence, everything. Her husband smoked 20 to 25 cigarettes a day, perhaps more. He smoked Benson & Hedges. She bought “Fine 120” cigarettes for special occasions. She was asked how long she expected the cigarettes bought that day to last her and her husband; she replied, “A few months I suppose.” After she had paid back her daughter she would not have a lot of savings left. She had just given her lighter to her daughter to light a cigarette, but she had another one, which she produced. She signed the notebook to confirm that it was a true account at 23.28 hours. The officer noted in the book the reasons for seizure: (1) Consumption rate; (2) Income vs expenditure; (3) Underdeclared, and recorded the vehicle and goods as seized as forfeit to the Crown as 23.47 hours.
7.	The goods seized were recorded on Form C156. There were 14,000 Superkings, 10,000 Benson & Hedges, 3 kg of Golden Virginia hand-rolling tobacco, 400 Fine Superlongues, 18 litres table wine, 1.5 litres Cointreau, all new and one Mercedes car recorded as in “fair” condition.
8.	In his letter to the Commissioners dated 14 March 2001 the Appellant referred to the seizure. He explained that the goods (allocated to Mrs Ashmore and the Appellant and his wife respectively) were for their own use, and stated that he had no need to make a financial gain from any of the items listed. He requested the return of his car, and gave reasons for needing its return. He also requested the return of all of their goods.
9.	An unnamed Team Leader replied for the Commissioners on 27 March 2001. This referred to the quantity of goods found, and said that the Appellant had failed to satisfy the officer that the goods were not being imported for a commercial purpose; the goods and vehicle had therefore been seized. In order to maximise deterrent and encourage compliance the Commissioners’ current policy was to refuse to restore seized goods and vehicles. There were no grounds in the present case for a departure from that policy.
10.	The Appellant wrote on 2 April 2001 requesting a review. He explained the circumstances. He referred to the officer asking how many cigarettes were in the boot of the car. He asked how one could prove that the goods were and had always been for their own personal use.
11.	The Review Officer’s decision dated 17 May 2001, referred to at paragraph 7 of the earlier decision of the Tribunal, was very brief. It was the subject of the first appeal, and the Officer’s reasoning was considered in the earlier decision. As directed by the Tribunal, the Review Officer, Mr PA Devlin, carried out a further review and set out his conclusions in his letter dated 29 May 2002. He considered the earlier decision, correspondence from the Appellant, and the notebook records made on the day. He had tried to establish whether or not the case made by the Appellant was plausible and whether it was consistent with a case of genuine cross-border shopping for own use. Mr Devlin referred to the discrepancies as between the amounts of cigarettes declared and the total, and considered the amounts if the questions related to the cigarettes in the boot and not to the 2,000 that the Appellant had said were inside the car. The figures could not be reconciled. (We consider this below, so do not set out the details here.) He referred also to the discrepancy between the 2 kg of tobacco declared and the 3 kg found; he could not find a genuine reason for it. The travellers were being interviewed about something they had bought a matter of hours before and which had cost them altogether over £2,000. Mr Devlin did not believe that they would have forgotten what they bought for that amount of money because he felt that most reasonable people would agonise over spending that amount of money and would want to be sure that they got their money’s worth. He did not accept the Appellant’s explanation that he had not made a day trip and that it had been his wife travelling; he had referred to only wanting to buy wine. If he had been travelling, he would simply have said that he was not there. He did not accept the Appellant’s claim that he had signed the notes without reading them because the officers were trying to open the boot of the car and he feared that they would damage it, nor his claim that he signed them under duress. When he was individually interviewed, it was clear that the boot had already been opened and emptied; he had acknowledged this in his letter dated 2 April 2001. He had endorsed the notes with a declaration that they were true and accurate, as well as signing them. Although, given the time elapsed, the case Officer had little direct memory of the events, she did remember the Appellant losing his temper, and his appearance; she was “half his size”, and Mr Devlin did not accept that the Appellant would have found her intimidating. There had been nothing to stop any of the three travellers from asking that the notes be corrected. Mr Devlin’s view was that there were sufficient discrepancies in the case made by the Appellant for him to disbelieve the Appellant’s claim to have imported goods which were genuinely for own use. His view of the case was that it was one of “smuggling for profit”. Following Lindsay v Customs and Excise Commissioners ([2002] STC 588) he confirmed the refusal to offer restoration of the seized car.
The oral evidence

12.	The Appellant’s occupation at the time and at the date of hearing was senior project manager. At the time his earnings were £85,000, and had since increased. He considered that his recollection of the events that day was pretty good, as it had been a harrowing experience. The main purpose had been to buy cigarettes, as they were cheaper. They had been in a queue with other vehicles, and the Customs Officer had run across the tarmac from 50 yards away and stopped, putting on a high visibility jacket. She had stopped the car from the front with a hand signal. He had put the window down, and the officer had run round from the passenger side to the driver’s door. She had asked him where he had been. She had her knees bent, with her head slightly in the car, trying to do her jacket up. She was looking into the car. On the back seat there had been Mrs Ashmore, and four or five bags with cartons of cigarettes in them. His evidence was that the officer had asked how many cigarettes there were in the boot. (Various points in his evidence were disputed, as we consider below.) He replied that there were 90 cartons. The officer had said, “You smoke a lot – are they for your use?” He had said that they were for himself, his wife and his mother-in-law. The officer had asked him to pull the car over. He had not broken down the 90 cartons at that point. He had got out of the car, having been asked to do so, and to remove the contents from the boot and inside. He had not mentioned the tobacco; he had been asked about cigarettes. There had been some joviality between the officers, and another officer had taken the inventory. Mrs Cox had asked him why there were so many cigarettes. He had said that he smoked a lot, and his family also. There had been three officers behind them sorting brands of cigarettes, hand-rolling tobacco and wine. There had been various jovial remarks between officers, including “Good one here, nice car.” (He said that it had been worth about £10,000 at the time.) After 30 to 40 minutes the officers had indicated that they did not believe anything that he had said; there was a good chance that he would lose all of the goods and the car. He had been told that they were going to take his car; or he could stay and be interviewed. They had chosen to be interviewed. Mrs Ashmore had been taken to one end of the hangar by an officer in uniform, and Mrs Tallon to the middle by another uniformed officer. The Appellant had stayed by his car. Mrs Cox had gone to change her coat, as it showed the wrong name. Before he had gone with Mrs Cox to his interview, he had not seen her write down any answers. In the interview she did write them down.
13.	In the interview Mrs Cox had asked him about the declarations of 30 sleeves each. When she had asked about the extra 30, he had known what she was asking, and he had replied. He could not remember whether she had asked about “the extra 6,000 cigarettes”. She had asked about “extra cigarettes”. He could not remember his answer to the question why he had not told the officer, or what had been recorded. There had been 6,000 extra. She had asked about the brand; he had replied “Superkings”, but had not said black. When she had asked him about a day trip, he had not given that answer. He had said that they had been to Spain for a long weekend. She had asked about prior trips, and he had answered about the trip to Malta at Christmas. He had told Mrs Cox that his wife had been on a day trip 4 weeks before. The note relating to buying wine and 5 persons in the car should have referred to his wife. He had not been on that day trip; he had asked for the computers to be checked. He acknowledged that it was his signature in the notebook after the initial interview, and his writing and signature after the notes of the second interview.
14.	In cross-examination, the Appellant thought that he had been stopped by Mrs Cox; he did not recognise her. He was firm in his recollection of the officer running across. On the question of his memory as against the officer’s notes, he said that he had it right on that evening, they had it wrong. The officer had asked how many cigarettes there were in the boot. When put to the Appellant that the question in the notes was how much excise goods they had, he said that this had been prior to anything being taken down in the notebook. He had not been asked about “excise”, but guns, drugs etc. The answer had been that there were 30 each in the boot. He did not recall being asked about tobacco goods. When referred to Mrs Cox’s witness statement, he did recall the question at the initial interview about excise goods. There were pieces missing from the account. He repeated that the question had been how many cigarettes they had in the boot. He had been asked about tobacco. Mrs Cox had already seen the other items in the car. He would not have “harped on” for two and a half years about the question relating to the boot if someone had not said it.
15.	In the second interview with Mrs Cox, his answers about the extra cigarettes and who they belonged to had been correct. The extra 6,000 cigarettes were for him and his wife. Mr Barnes put to him that with the 30 sleeves each already declared, this amounted to 18,000 cigarettes. However, Mrs Ashmore had claimed that 50 cartons of Benson & Hedges were hers. These 10,000 cigarettes, when added to the 18,000 that the Appellant was claiming for himself and his wife, produced a total of 28,000. Mr Barnes asked how this could have been right. The Appellant said that his answer to Mrs Cox’s question about the extra cigarettes had been right. Everything had been on the floor and quantified; for some reason Mrs Cox had been obsessed with an extra 2,000. He had not said that he was talking about the boot as it was a cold evening, they had been there some time, they were the butt of jokes, there were piles of goods in the car park, the conversation was heated, and it had been some time and he had not had a cigarette – a combination of various things. The officers had been “vandalising” his vehicle and he had been a bit distracted in the first part of the interview. He had referred on the day to 2,000 cigarettes, but not in the back of the vehicle. Everything had been placed on the ground at the rear of his vehicle. Mr Barnes asked why the amounts never added up to the amount found; the Appellant’s reply was that it meant very little to him.
16.	Mrs Cox’s notes about the previous trip had been correct for the first interview, but the Appellant claimed that at the second interview she had written the answer down incorrectly. He could not remember whether he had read this part of the notebook, but his evidence was that it was wrong. He then said that he had not read it through. He had signed it to “get out of there”; the officers had already made their minds up, so he had asked himself why should he read it? He accepted that he had put his initials and his signature in the notebook. He had read bits; he had not been prepared to sign. He would not read it. He initialled it. He did not sign forms with the word “smuggler”. He signed to protect his vehicle. The officers had intimidated him that night. It had been the last trip for his wife 3 to 4 weeks before, without him. The reference in the other officer’s notebook to his wife’s trips “last week and the week before” had been incorrect; there had been only one trip. The reference to him only wanting to buy wine should have been to them [ie those travelling]. He had travelled 3 or 4 weeks before, but never through Dover before or after 9 March 2001. Mr Barnes referred to the Appellant’s signature of the notebook after the first interview. The Appellant confirmed that the search of the vehicle had already been carried out. Mr Barnes referred to paragraph 14 of the earlier decision, and asked why the officers would be searching the boot again. The Appellant’s reply was that they were looking for drugs and guns. He had stood there while they pulled at the boot, the bonnet, the door linings and seats. He had felt intimidated by the officers, despite his height of 6 feet and weight of 17 stone. He admitted that he had become very angry later in the process; he was being offensive and aggressive at the end, as nobody was listening. He denied that he had been smuggling for profit.
17.	Mrs Cox explained that at the first stage (the first interview) she had a set of questions that she always asked; as soon as she finished she wrote them up in her notebook. She was confident that her notes of the first interview were accurate, as she used the same format for every traveller. She would not have mentioned the word “boot”; she had never done so. For the second interview she wrote the notes question by question, taking her time as the answers were given. Her recollection was that there had been no reason to interfere with the car, as when looking for excise goods these were not generally in the body of the vehicle. The Appellant had appeared agitated when signing the notes after the first interview. After the second interview he had become agitated and used bad language. It had been the Appellant who had been slightly intimidating; she had had to call a senior officer. She would not have been running, as vehicles were selected outside and directed towards officers. She had already been wearing a high visibility jacket, as always required. She had not cast her mind back to this case until her witness statement dated 6 March 2003. She accepted that to a large extent she had to rely on her notes. She remembered the demeanour of the Appellant; she had made a specific note, and he had also spoken to a senior officer at the time. She confirmed that she had not asked how many goods there were in the boot. In relation to the questions about previous trips and the inconsistency between the Appellant’s answers in the first and second interviews, she said that there were very often differences between the initial interview and the second; travellers often changes their account when interviewed. She had been happy that the Appellant had travelled 3 or 4 weeks ago. She would not have asked the Appellant to sign the notes unless he had taken them from her and read them. Officers did not have name badges; they had numbers. She confirmed that as soon as she had looked in the vehicle, she had written up her notebook straight away.
18.	Mr Devlin confirmed his understanding that the further review concerned only the car and not the goods; he referred to paragraph 1 of the earlier decision. If he had been asked about the car and the goods, he could not initially say whether there would have been no difference, as this would involve making assumptions about the evidence. Taking into account the decision relating to the car, the answer would be no. In carrying out his review, he had taken into account how much the Appellant smoked, the level of his income, the absence of concealment, the scale of importation, the Tribunal’s calculations in the earlier decision of the rates of consumption. He had not considered the letters relating to an eighteenth birthday party as mentioned by the Tribunal in the earlier decision, as he had not had the information to check. It was for the Appellant to make his case. Mr Devlin had considered whether the case had involved an intermediate Lindsay “friends and family” importation, and had concluded not. It had been the cumulation shown in his letter that had taken the case from one declaring inconsistencies to smuggling for profit.
Arguments for the Appellant

19.	Mr Twomey referred to the decision of Smith J in Dickinson [2003] EWHC 2358 (Ch). This confirmed that as long as objection was given, the Commissioners had to consider whether there should be condemnation proceedings. The Tribunal had power to make findings of fact on the question whether this constituted a commercial importation. Lindsay had referred to three categories; own use, not for profit – “friends and family”, and smuggling. Taking into account the earlier decision, the primary issue was whether this was smuggling for profit, although there was an option that it was not for own use. Mr Twomey argued that this was not an importation for profit. He argued that the way into the case was to look at Mrs Ashmore’s account to explain the numbers. Mr Devlin had referred to discrepancies; Mr Twomey maintained that inconsistencies could be evidence of truth. He conceded that there was a discrepancy in the number of pouches of tobacco found; if this had been the only one, he would have said that there was no case to answer. He agreed that seizure of vehicles was not a punishment but to prevent further smuggling. The Appellant did appeal in respect of the goods as well as the car; he sought restoration of the goods. He accepted that the motor vehicle could not now be restored as such, despite the impression given in correspondence that if the traveller writes within 30 days, the vehicle will not be sold. If the Tribunal did not find that the Appellant was smuggling for profit, Mr Twomey argued that it was not proportionate for the car to be forfeited. He urged that the Tribunal should take into account the Appellant’s good character, the amount he smoked, his income, the absence of concealment, and his volunteering the details of a previous seizure.
20.	The burden was on the Commissioners to make out that the Appellant had been smuggling for profit. Mr Twomey maintained that the higher civil standard applied where the matter involved was in nature criminal. He referred to Dickinson and the conclusion that the tribunal in that case ought to have remitted the matter for reconsideration. He argued that this should happen here. He questioned whether inconsistencies necessarily amounted to lies, and whether lies necessarily amounted to guilt. He maintained that the Commissioners had not satisfied the burden of proof. He reviewed the evidence. It had not been made out on the facts that there had been smuggling for profit. Mr Devlin’s review had been in error, jumping from inconsistencies. If the Tribunal were to find that this was a “not for profit” case, details of the value of the car were not known for the purposes of dealing with issues of proportionality. He asked for the opportunity to make further legal submissions, and we directed that any written submissions should be lodged within seven days. [No further submissions were in fact made.]
Arguments for the Commissioners

21.	Mr Barnes referred on questions of law to the earlier decision. The question was whether the Commissioners had reasonably arrived at the decision not to restore. He accepted that the burden of proof that the importation was commercial was on the Commissioners. He drew attention to the inconsistencies in the numbers of cigarettes. The references to earlier trips by the Appellant and his wife had not been consistent. He challenged the Appellant’s evidence in the light of his memory, which he had said was good. The Appellant had also been wrong on details such as name badges and the officer running to intercept the car. He had signed and initialled the notebook. He argued that the Appellant’s evidence was unreliable. The burden of proof on the Commissioners was on the balance of probabilities; was it reasonable for the officers to conclude that the importation was commercial? There was no evidence of “not-for-profit” sales; either the importation was for profit, or for own use. The scale of the importation was significant. He argued that in the light of Lindsay, the decision not to restore the car was proportionate in the circumstances.
Discussion and conclusions

22.	The first question relates to the accuracy of the Appellant’s recollections as shown by his evidence. We find that despite his claim to have a clear recollection, the evidence shows that it is not always correct. He referred to replying in the initial interview that there were 90 cartons in the boot. We are satisfied that Mrs Cox did ask each of the travellers individually what quantity they had imported, and that the record of each answering individually that they had 30 cartons was correct. The Appellant referred to the officer running to intercept the car. We accept the evidence of Mrs Cox that there is no need for officers to do so. The Appellant referred to Mrs Cox’s name badge, but we accept Mrs Cox’s evidence that officers have numbers rather than names. As indicated in paragraph 14 of the earlier decision, the Appellant said that he had signed the notes of the first interview without reading them because the officers were “interfering with” his vehicle. However, he signed those notes after all the goods had been removed and the details of them recorded in the notes, and clearly this had happened by the time of the second interview. We are prepared to accept that the experience of being interviewed may be perceived as an unpleasant one, but we do not think that someone of the Appellant’s size and build would have been intimidated by the officer. We are therefore prepared to accept the officer’s notes as a reasonable record of the questions and answers at the two interviews, even if they may not necessarily be accurate in every single respect. Given the way in which the Appellant recorded his agreement to the notes, we do not think that he can be said to have been under duress when he signed them, nor do we think that he signed them without reading them.
23.	The second question concerns the standard of proof. Mr Twomey argued that the burden of proof was on the Commissioners, and that a higher degree of probability was required. We do not accept this. The latter standard is appropriate where what is in question is dishonesty. The question here is whether on the balance of probabilities the importation was commercial. In Hoverspeed [2003] STC 1273 at [131], sub-paragraph 10 (A) Brooke LJ, giving the judgment of the High Court, referred to the burden lying on the Customs and Excise to prove on a balance of probabilities that the goods were imported for a commercial purpose. He made no reference to the burden being anything other than the normal civil standard. We cannot see that the question of dishonesty arises where the issue is the nature of the importation. We therefore apply the normal civil standard in considering the evidence. 
24.	In relation to the number of cigarettes, we have, as suggested, approached the question by starting with the assumption that all the Benson & Hedges belonged to Mrs Ashmore, as she claimed. This does not explain why she initially claimed only to have 30 sleeves rather than 50. We agree with the officer’s conclusion that expenditure of this level was out of proportion to her income and expenditure, as it involved spending nearly all her savings. In her interview she is recorded as saying initially that she expected the 50 cartons to last about 2 months. However, later in the interview she responded that they would last her and her husband a few months. As found in the earlier decision, the combined consumption rates mentioned would result in the cigarettes lasting 6 months. We think that it was reasonable for the officer to conclude that the cigarettes were not for her own use, and that in the absence of a plausible explanation for their importation, it had been established that the importation was commercial.
25.	If the Benson & Hedges cigarettes are subtracted from the total, this leaves 14,400 cigarettes. In the initial interview, each of the Appellant and his wife claimed to have 30 sleeves. This accounts for 12,000 cigarettes, leaving a balance of 2,400 to be explained. In her interview, Mrs Tallon did not state that she had any additional cigarettes. The Appellant said in his interview that the extra 6,000 cigarettes over the 3 lots of 30 sleeves declared earlier were for him, then said that they were for him and his wife. Ignoring the 400 Superlongues, he was accounting for the whole balance purchased. However, if Mrs Ashmore’s claim to own 50 cartons is taken into account, the Appellant’s claimed balance makes no sense. We are drawn to the conclusion that the Appellant was indeed dealing with the whole balance purchased, as a combination. He stated that he smoked Superkings. Mrs Tallon said that 30 cartons of Superkings were hers. If so, part of the claimed excess of 6,000 cigarettes consisted of Benson & Hedges; this would have amounted to 4,000. It seems to us unlikely that smokers with an attachment to one brand would choose, when making a special trip to buy a substantial quantity of cigarettes, to make up that quantity with a different brand. We do not accept that Mrs Cox’s questions in the initial interview as to quantities made any reference to the boot. The answers given did not account for the full number of cigarettes in the car, nor the full amount of tobacco. We do not think that the Appellant’s responses in the two interviews amounted to a plausible explanation of why these quantities of cigarettes and tobacco were being imported.
26.	The Appellant also indicated, having regard to his income, that these quantities did not mean much to him. Our impression is that anyone choosing to travel to make substantial purchases of excise goods would be conscious both of the cost and the potential savings, whatever the level of the traveller’s income. A wealthier traveller might not have to think as hard before incurring the expenditure, but the very process of making a special trip to buy excise goods implies a “bargain-conscious” approach. It might not be necessary for that wealthier traveller, in Mr Devlin’s words, to “agonise” about the purchase, but we think it most unlikely that such an individual would not be broadly aware of the levels of cost saving involved in purchasing excise goods abroad, taking into account the costs of travel. It follows that we agree with Mr Devlin’s further comment that travellers would want to be sure that they got their money’s worth.
27.	The Appellant’s responses relating to the numbers of cigarettes suggest to us the possibility that the purchases could have been seen as aggregated, in other words that there was a combined venture. Mrs Tallon had paid for all the goods using money from the Appellant’s bank account and a credit card. Mrs Ashmore said that she was to pay her daughter from her savings; she did not have exact details of the amount, but was aware that it would leave her with very little. However, the Commissioners have treated Mrs Ashmore separately from the Appellant and his wife, and concluded that in each case the goods were not for their own use. On this question we have already dealt with Mrs Ashmore’s goods. Mrs Tallon’s stated rate of consumption would have meant that the 30 sleeves claimed by her would last 4 months; her answer in her interview was consistent with this. The Appellant’s stated rate of consumption of 80 cigarettes a day would have meant that the balance of 8,400 cigarettes remaining would last 3.5 months, as against the 2 to 3 months he mentioned in his interview. We see no reason to question either of these claimed rates of consumption. By themselves, the periods for which the cigarettes would have lasted are arguably not excessive, although relatively longer in Mrs Ashmore’s case. However, it is impossible to apply them to a plausible explanation of the division of the cigarettes among the travellers that would be consistent with the answers given in the interviews. The tobacco that the Appellant declared was 40 pouches (2 kg), but the quantity found was 3 kg. There were no questions about this in the second interview, and no explanations for the excess. We agree with Mr Devlin’s comment that no genuine reason can be found for this discrepancy.
28.	We accept that the Appellant gave no plausible explanation of the reasons for importing these quantities of cigarettes and tobacco, and that in the absence of such an explanation it was reasonable for the officers to conclude that the importation was commercial. As the goods were being carried in the car, this became liable to seizure in accordance with section 141 Customs and Excise Management Act 1979, and in the light of the Court of Appeal’s judgment in Lindsay, the question of proportionality (and consequently that of the value of the car) did not arise.
29.	In the earlier decision the Tribunal described the nature of the Tribunal’s jurisdiction, and set out the principles to be applied in exercising it. We do not need to repeat these comments. We conclude that the Reviewing Officer’s determination was reasonable, taking into account all relevant considerations, and leaving out of account all irrelevant considerations. We therefore see no basis for interfering with Mr Devlin’s conclusion on review that the car should not be restored.
30.	In relation to the goods, we accept that there may have been an oversight. The original review letter dated 17 May 2001, considered by the Tribunal in the earlier decision, did relate both to “the goods and vehicle”. However, the Tribunal referred to it as a decision not to restore the Appellant’s car, and to the appeal as being against the review decision not to restore the car. Mr Devlin proceeded as directed by the Tribunal in the earlier decision and carried out a review relating only to the car. This means that the question of the goods is not, as a formal matter, before us. If it had been, it follows from our conclusions on the evidence that we would have accepted that the importation could be seen as commercial, so that we would have confirmed as reasonable a decision on review not to restore the goods. If condemnation proceedings are still open, the Appellant may still be able to test the Commissioners’ actions in that way; it is not for the Tribunal to comment. If the Appellant were to seek in some way to challenge the review decision dated 17 May 2001 in relation to the goods, we doubt (in the absence of compelling new evidence) whether any other Tribunal would differ from the view that we have informally expressed.
31.	The appeal is dismissed; we make no order as to costs.

JOHN CLARK

CHAIRMAN

LON/02/8211