[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom VAT & Duties Tribunals (Excise) Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Reynolds v Customs and Excise [2004] UKVAT(Excise) E00708 (23 April 2004) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00708.html Cite as: [2004] UKVAT(Excise) E708, [2004] UKVAT(Excise) E00708

[New search] [Printable RTF version] [Help]

EXCISE DUTY – restoration appeal – Appellant and two passengers stopped at Dover – goods and vehicle seized – Appellant and brother disabled – hardship and exceptional circumstances considered – appeal dismissed

MANCHESTER TRIBUNAL CENTRE

EDWARD PAUL REYNOLDS Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mrs E Gilliland (Chairman)

Mr R G Grice (Member)

Sitting in public in Birmingham on 11 February 2004

The Appellant in person

Mr J Puzey of Counsel instructed by the Solicitor's Office of HM Customs and Excise for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION
1. The appeal before the Tribunal is that of Edward Paul Reynolds (the Appellant) against the refusal of the Commissioners on review on 27 June 2002 to restore a vehicle seized at Dover on 28 February 2002. The Appellant has presented his own case to the Tribunal and called two witnesses his brother Anthony Paul Reynolds and a friend Paul Adam Malinowski who were his travelling companions. Mr. Puzey for the Commissioners has called two witnesses namely one of the interviewing officers D. Fielder and the review officer Brian Anthony Rayden.
2. The background of the matter is that the Appellant and his two passengers were stopped by Customs at Dover Eastern Docks on 28 February 2002. The Appellant was driving the vehicle which belonged to him a Ford Orion car registration K467 DHP (the vehicle). Excise goods were seized at the same time from the Appellant and the other two travellers comprising 20 kilograms tobacco 3160 cigarettes 18 litres of beer and 0.75 litres of wine (the goods).
3. It is not disputed that when stopped the Appellant replied to questions raised first by Miss J. Finch. Each occupant was then separately interviewed ; the Appellant by Officer Fielder Anthony Paul Reynolds by Officer Johnson and Paul Adam Malinowski by Officer Goddard. We understand from Counsel for the Commissioners that it had been intended that Miss Finch and Mr. Johnson would attend today's hearing but they had not been able to as they had been called to the Crown Court at Canterbury. No witness statements were produced from them. The Appellant had wished in particular Miss Finch to be in attendance. It was agreed that the matter should proceed without adjournment and the position could be re-considered later in the hearing. The Appellant subsequently confirmed at the conclusion of the evidence that he wished the hearing to proceed to a conclusion and did not wish to have any adjournment in respect of Miss Finch's evidence.
4. To assist the Appellant and the Tribunal Mr. Puzey opened the case for the Commissioners. He began by reading out the notebook entry of Miss Finch who had set out the initial questions which she had asked and to which the Appellant replied. At the bottom of her notes Miss Finch endorsed:

"Prohibitions + restrictions. I explained that because of the quantity of goods they had I wanted to ascertain what the goods were for by means of an interview. Explained that they were not under arrest + were free to leave if they wanted. All wanted an interview. Interviews conducted by officers Fielder Johnson + Goddard." Mr. Puzey then drew the attention of the Tribunal to the individual interviews as recorded in manuscript in the bundle of papers before the Tribunal. He referred to the notebook record of Mr. Fielder dated and recorded as signed at 13.05 hrs; that of Mr. Johnson as duly signed; and that of Mr. Goddard dated signed and marked 13.40. Each of the Appellant Anthony Paul Reynolds and Paul Adam Malinowski was asked in cross-examination as the interview records were read out by Mr. Puzey to stop him if they did not agree them.

5. The sequence of events on 28 February 2002 was that after the interviews the interviewing officers reported back to Miss Finch who on behalf of the Commissioners then endorsed on her record that she was not satisfied that the goods were for own use setting out 6 reasons for this. The goods and the vehicle were seized and the Customs documentation handed over. We have in the bundle before us copies of the seizure information form the seizure of vehicle form the warning notices and the excise seizure documents list. None of these was signed by the Appellant or his travelling companions.
6. The Appellant wrote an undated letter which was received by the Commissioners on 5 March 2002. In that letter he said that the goods were all for their own use and that they had receipts and proof of where the money came from to purchase the goods. He said that both his brother and he were disabled and the car was their "only lifeline to the outside world". Restoration was refused in a letter of 3 April 2002 from Miss T.J. Wheeler. She set out the Commissioners policy in respect of goods and vehicles and stated that she had seen no evidence of exceptional circumstances which would justify a departure from policy. The Appellant wrote an undated letter received on 13 May 2002 by the Commissioners and he sought a review of the refusal in respect of the vehicle. He said that the vehicle was his only means of transport and as he was unable to work had no means of replacing it. He had no objection to the DSS being contacted in respect of his disability. In the letter he said also that he understood that the Commissioners would not return any goods confiscated.
7. The review letter of Mr. Rayden was dated 27 June 2002. He also completed a witness statement on 22 October 2002 and we have not been informed that this has been challenged. Mr. Rayden considered the back-ground of the matter the legislation then in place and the policy of the Commissioners. He confirmed the decision not to offer restoration. His review letter is however clearly on the terms that restoration of the vehicle was the matter under consideration by him in view of the comments of the Appellant in the last letter which he had addressed to the Commissioners. The Appellant subsequently issued a notice of appeal to the Tribunal on 15 August 2002 and set out as his grounds:

"the Customs should not of taken anything from us, as it was for our own personal use".

8. In the evidence he has given to the Tribunal Mr. Rayden has confirmed that this case as with others was re-considered by the Commissioners subsequent to the decisions in Lindsay and Hoverspeed but he had not found it necessary to change his decision. The amendments to United Kingdom law raising the guidelines for cigarettes to 3,200 and for hand rolling tobacco to 3 kilograms (although at the time of the seizure the guidelines were 800 cigarettes and 1 kilogram of smoking tobacco) had been taken into account also (see Excise Goods Beer and Tobacco Products (Amendment) Regulations 2002). Further the Commissioners had accepted that the burden of proof as to commerciality was on them. (See Hoverspeed [2002] EWHC 1630 (Admin) and [2002] EWCA (iv 1804)
9. The Appellant had told the interviewing officer that he was importing 1 box of Golden Virginia tobacco 800 cigarettes and some beer. He was on disability benefit but had £80.00 per week available for spending money. He had travelled 5 times in a 3 month period but had not got much buying mostly off the ferry. He had not seen the Customs notice 1. He acknowledged that he had been abroad the previous week and the week before that. The previous week he had brought in some wine and 800 cigarettes which he and his wife had smoked.
10. At the interview the Appellant's brother had said that he had brought in 6 kilograms of Drum tobacco and 2 kilograms of Golden Virginia 3 cases of beer and 1,600 cigarettes for all of which he had produced receipts. This had been at a cost of £450.00. He claimed to smoke 300 cigarettes per day, 7 pouches per week. His money came from his disabled living allowance and the social fund. He had been abroad on 3 occasions altogether. The previous week he had got nothing but 10 days before that he had 600 cigarettes and 10 pouches of tobacco with a crate of beer. He had not seen the Customs notice and did not know the guidelines.
11. The third traveller Paul Adam Malinowski had said at interview that he had brought in 120 pouches of Drum 800 cigarettes and a crate of beer at a cost of about £300.00. He said that for the cost he and his brothers had all chipped in. He had an income of £194.00 per week but had commitments of £300 to £400 per month. He had no savings. He said that the beer was for him and the rest would be shared. He had travelled 2 weeks previously with the Appellant and his brother and in the previous 12 months these had been the only two trips that he had made. On the previous trip he had bought 12 pouches of hand rolling tobacco and 800 cigarettes.
12. In the case before us the vehicle has been deemed to have been condemned as forfeited pursuant to paragraph 5 of Schedule 3 to the Customs and Excise Management Act 1979 (CEMA) because no notice challenging the forfeiture was given to the Commissioners and the Tribunal has no power to re-open the decision to forfeit the vehicle. We do however have the power to find relevant facts. The Tribunal has no power to restore the vehicle or award compensation should the appeal be successful. The role of the Tribunal under Section 16 (4) of the Finance Act 1994 is to consider whether we are satisfied that the Commissioners could not reasonably have arrived at the contested decision. If so satisfied sub-clauses (a) (b) and (c) set out what the Tribunal may do the most appropriate being to direct a re-review of the decision.
13. The point was put to us by the Appellant that Miss Finch had already made up her mind before the interviews had taken place and the responses to questions given. We do not accept this. Her notebook and those of the other officers clearly record the procedures followed and Officer Fielder as an interviewing officer was able to confirm in his oral evidence that he had written the questions and answers contemporaneously and the purpose of the interview to convince Miss Finch rather than him that the goods were for personal use. The reason given by the Appellant to the Tribunal as to why he had first told Officer Finch that they had 100 pouches of hand rolling tobacco each was he said that "they were talking to him" direct and "they did not ask him what was in the vehicle". We cannot accept this and find the initial declaration as to the goods could only be seen as misleading. Equally we find no satisfactory reason for the frequency of travel of the Appellant and his brother and even Mr. Malinowski confirmed that he had been on two trips in the previous 12 months with the Reynolds brothers. The evidence of the Appellant was that he was not making the trips to import excise goods. He had travelled frequently within a few weeks as it was "a nice country" and when asked by Counsel for the Commissioners why on previous occasions he had gone so far for the small quantities of goods to which he had referred he told the Tribunal that it was "well worth while. It was nice to get out". When asked if he had gone from Calais to Ostend he said that it was "all France" to him. We find this evidence that these were intended merely as pleasant trips away inconsistent with the evidence both written and oral given by the Appellant as to the restrictions imposed by his disablement. We accept the evidence of the Appellant that he does not work and is on disablement benefits. When seeking the restoration of the vehicle however on the grounds of the hardship the lack of the vehicle caused him he put it that the vehicle was "his only lifeline", that he could not keep appointments without the vehicle and that he did not feel safe in public transport. He nevertheless took frequent journeys abroad as the driver of the vehicle and even if he had companions with him he nevertheless had to cope with the inconveniences caused by ferry travel and long distances. Nor are we satisfied with the evidence given as to the financing of the trip and the purchases. Both the Appellant and his brother were disabled and on their evidence had limited available income and savings yet Mr. Anthony Paul Reynolds had spent £450.00 and also Mr. Paul Adam Malinowski who was unemployed and had commitments of £300.00 - £400.00 per month spent £300.00 on his goods. Three weeks previously he had purchased 12 pouches and 800 cigarettes. He did say that for this trip his brothers had chipped in. Subsequently however in response to cross-examination he appeared to be saying that having paid £2.00 for each pouch in Belgium he would receive £6 for each pouch from his brothers. He then corrected his answer to say that he was not going to charge. Although it might have appeared at one stage using the distinction drawn in Lindsay that Mr. Malinowski though bringing goods back other than for his personal use was bringing them for family without a view to profit, on the evidence given to us we do not accept this to be the case. We find that Mr. Malinowski was bringing his share of the goods for a commercial purpose. Further we do not consider the explanations of the Appellant and his brother as to the quantities they smoked plausible. The Appellant said that he and his wife had smoked the 800 cigarettes from the trip one week before in the course of that week (his wife who had given up smoking had started again.) Mr. Anthony Paul Reynolds claimed to smoke some 300 cigarettes per day due to his insomnia and illness. At the hearing when asked by Counsel he produced a pouch which we are told was not marked as "UK duty paid" and clearly he had not been smoking at the rate he had quoted on the day of the hearing. Even on the new guidelines the Appellant and his companions each brought in significant quantities of hand rolling tobacco in each case at least double the current guidelines.
14. In Lindsay (Lindsay v Commissioners for Customs and Excise [2002] EWCA C iv 267 Lord Phillips at paragraph 64 stated:

"There is open to the Commissioners a wide range of lesser sanctions that will enable them to impose a sanction that is proportionate where forfeiture of the vehicle is not justified". Mr. Rayden has told us that he had looked at the issue of hardship when making his review decision but concluded that the initial decision was reasonable and proportionate. We have been told by Mr. Rayden that when the car was seized it had a value of £600 whereas the Appellant and his companions had spent about £1,000 between them and the duty on the goods was £2,385.21. He was aware also from a check on the National Database that another car was listed at the Appellant's address. The Appellant subsequently objected to the value placed on the vehicle which Mr. Rayden had said was a basic trade value in the Glass guide. He also asked Mr. Rayden if he was aware if the other car was taxed and running and in response to cross-examination from Mr. Puzey the Appellant told us that whilst he had another car it was not running but broken down and for repair and that he had receipts available. No receipts were made available to the Tribunal.

15. In determining whether the decision of the Commissioners was reasonably arrived at we have to consider whether the Commissioners took into account all relevant matters, excluded from their decision irrelevant matters, and were aware of the law. We are satisfied that the goods were not imported for personal use. Despite the commerciality of the venture hardship was considered by the reviewing officer. The evidence of the Appellant has not led us to believe that there were exceptional circumstances applicable in this matter whereby the policy of non-restoration should not have been effected. The Appellant has emphasised the reliance that he and indeed his brother would place on the vehicle at their disposal. However neither is employed and thus does not need the vehicle for purposes of work. We have not been told of any family obligations which might necessitate a car being constantly available. Neither brother lives in an area in which public transport is not available even if they may dislike it. There was another car available at the address and from the Appellants evidence it was repairable. We have no evidence as to what its condition was at the time of the seizure but the reviewing officer properly in our view took into account that it was there as an alternative vehicle.
16. Accordingly we dismiss the appeal. The Commissioners have not sought costs and we make no direction as to costs.

MRS E GILLILAND

CHAIRMAN

MAN/02/8221