E00778
EXCISE DUTY — appellants importing 10,000 cigarettes each — required to attend interview to satisfy Customs that cigarettes for own use — refusal to be interviewed — restoration refused — appeals dismissed

MANCHESTER TRIBUNAL CENTRE

 
 	PHILIP TAYLOR, TARAS STEFANYSZYN, EDWARD LOWE,
	LESLIE STEWART AND JOHN LEACH 	Appellants

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal: 	Mr J D Demack	 (Chairman)
						Mr C B H Gill	

Sitting in public in Manchester on 5th July 2004

The Appellants did not appear and were not represented

Miss K Huyton of Counsel instructed by the Solicitors office of HM Customs and Excise for the Respondents

	© CROWN COPYRIGHT 2004

DECISION
1.	On  30 January 2001 the five appellants, Messrs Philip Taylor, Taras Stefanyszyn, Edward Lowe, Leslie Stewart and John Leach, were stopped by a Customs officer as they returned together to the UK by car from a day trip to France.  They were asked about the purpose of their visit and replied “To buy cigarettes”.  When asked how many cigarettes each had, they replied “Two boxes”, i.e. 10,000 cigarettes.  The officer then inspected the boot of the car and found it to contain 50,000 Regal cigarettes and 1½ kilos of hand rolling tobacco.  Mr Stewart claimed that the cigarettes were for personal consumption, and admitted having made a trip to the continent 4 months earlier to buy excise goods.  Mr Leach  and Mr Taylor disclosed that they had had excise goods seized from them in the past, and Mr Stewart said that he had been “done” for selling tobacco to his mates.  The group claimed that the car in which they were travelling belonged to “a mate”.
2.	The officer informed the five that he was not satisfied that the excise goods they were importing were for their own use, and invited them to answer further questions in interview to show that the goods were not held or to be used for a commercial purpose.  They declined to be interviewed, whereupon the officer seized both goods and car.  (It subsequently transpired that the car belonged to one Mohammed Mehboot.  He did not appeal against its seizure, and it was condemned as forfeit.  The car plays no further part in events before us.)
3.	Each appellant sought restoration of the goods he claimed as his,  but to no avail.  Each then asked for the decision in his case to be reviewed.  Mr J F M Tooke, a member of Customs review team at Hastings, carried out all five reviews, and, with appropriate adjustments, in each case his review letter was in identical terms.  It is against the decisions on review, all given by letter of 7 June 2001 that the appeals are now made.
4.	When the appeals were called on for hearing (it having earlier been decided that they should be heard together) none of the appellants was present.  As we knew of no reason for their non-attendance, on the application of Miss Huyton, counsel for the Commissioners, we determined to proceed in their absence.
5.	The seizing officer, Mr Michael Johnson, and his line manager, Mr Barry Daynes (who was involved in verbal exchanges with the appellants following seizure of their goods and the car) gave parol evidence and, as usual, we were provided with a bundle of copy documents.  Mr Johnson confirmed the events of 30 January 2001, and Mr Daynes explained the part he had played.  Nothing arises from their evidence.
6.	In each review letter, Mr Tooke opened his consideration of the facts by saying that it fell to him to determine whether the contested decision was one which a reasonable body of Commissioners  could have reached.  That is not correct; his function was to re-consider the original decision not to restore the excise goods, and confirm, vary or withdraw it.
7.	He then dealt with seizure of the goods saying that the quantity of cigarettes each appellant claimed exceeded Customs guideline above which he could be required to satisfy them that they were not held for a commercial purpose.  (At the time the guideline figure was 800: it has since been increased to 3200.  It has been held that customs are entitled to provide guidelines for this purpose.)  Mr Tooke noted that in failing to be interviewed and thus satisfy the officer that the goods were not for a commercial purpose, each appellant’s goods became liable to forfeiture (a preliminary step in the condemnation process).  He added that three of the five had admitted previous dealings with Customs about excise goods, and thus would have had previous knowledge of the guidelines and consequences of their actions.  He expressed himself satisfied that the goods had been properly seized, and since there had been nothing prior or subsequent to the seizure to persuade him that exceptional circumstances existed warranting restoration, he confirmed the earlier decision not to restore the goods.
8.	The only information we have as to the appellants’ cases is that contained in the bundle of documents supplied to us by Customs. It contains the five notices of appeal, each one of which indicates in identical terms  that the appellant claims to have been importing his cigarettes for personal consumption, and their number to have been reasonable for that purpose.
9.	For the benefit of the appellants, we should explain that travellers from one country in the European Union  to another are entitled to import duty free in the latter excise goods purchased duty paid in the former which are for their own use and which they have personally transported: and it is for Customs  to prove  that goods are not for own use, but rather held or to be used for a commercial purpose. However, Lord Woolf CJ held in Goldsmith v CEC [2001 WLR 1674 that in certain cases, and we consider this such a one, “the reverse onus of proof can be justified by the commissioners on the simple basis that to place a burden upon a member of the public importing more than the specified amount of goods to establish that they are required for non-commercial purposes is proportionate, reasonable and justifiable”.
10.	A traveller whose goods are seized may appeal against seizure, but where, as here, the traveller does not appeal, his goods are condemned as forfeit by the passage of time, i.e. their ownership passes to the Crown.  But even though a traveller has not appealed against seizure, Customs still have a discretion to restored his goods.  Where, again as here, Customs have refused to exercise that discretion, the traveller may appeal to these tribunals on the ground that their decision was unreasonable.
11.	It is, therefore, for us to decide whether the five decisions made by Customs in the cases before us were unreasonable.  But, we should add, even if we hold that they were, our jurisdiction is limited to directing Customs to carry out a further review of their decision.
12.	Apart from the flaw in Mr Tooke’s approach to the task before him (which in our judgment avails the appellants nothing), we are satisfied on the evidence that the goods seized from each appellant were not for his own use.  We therefore hold that each decision not to restore the cigarettes and tobacco to an appellant was a reasonable one.  It follows that we dismiss all five appeals.
13.	We direct each appellant to pay a sum of £200 for Customs costs.

David Demack
Chairman
Release Date: 13 August 2004

MAN/01/8131
MAN/01/8149
MAN/01/8151
MAN/01/8153
MAN/01/8173