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	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 >> Cinque v Customs and Excise [2004] UKVAT(Excise) E00800 (21 October 2004) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00800.html Cite as: [2004] UKVAT(Excise) E00800, [2004] UKVAT(Excise) E800

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E00800

EXCISE DUTY – Restoration of vehicle – Vehicle seized on grounds that excise goods being carried were not for own use – Quality of goods equal to "guideline" limits – Whether for own use – No – Restoration offered in return for amount of less then excise duty on the goods – Whether reasonable – Yes – Appeal dismissed

LONDON TRIBUNAL CENTRE

ACHILLE CINQUE Appellant

and –

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: STEPHEN OLIVER QC (Chairman)

SHAHWAR SADEQUE

MICHAEL SHARP FCA

Sitting in public in London on 30 September 2004

The Appellant in person

Sorabjit Singh, counsel, instructed by the Solicitor for the Customs and Excise for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION

1. Mr Achille Cinque appeals against a decision of the Commissioners to restore his vehicle for a fee of £1,090. The original decision was made at the time when the vehicle was seized, i.e. 10 December 2003. Mr Cinque paid the fee and the vehicle was then returned to him.
2. At the same time as the vehicle was seized, some excise goods, specified later in this decision, were seized. Mr Cinque has not asked for the restoration of these, nor has he required a review of the decision of 6 January 2004 not to offer those goods for restoration.
3. Mr Cinque attended the hearing and gave evidence.
4. Mr Cinque is the owner of the seized vehicle. He is a private individual who resides in Windsor, Berkshire.
5. On 10 December 2003 Mr Cinque, accompanied by his wife (Gaetana Liccardo Cinque), was intercepted by customs officers at the UK Control Zone at Coquelles on the South side of the Channel Tunnel. In response to initial questions Mr Cinque had said that he had been shopping in France and Belgium to buy tobacco, cigarettes and wine. His last trip abroad had, he said, been three weeks before. He said that he travelled to France about every three weeks. He said that he was carrying 2400 cigarettes and three kilograms of hand-rolling tobacco. His wife also was bringing in those amounts.
6. In the course of an interview Mr Cinque explained that he worked in a café in Maidenhead. His income had been approximately £220 a week. His wife was a cleaner in a nursing home and earned about £130 a week. Rent for his home was £85 per week. He had, he said, a 17 year old daughter and a 15 year old son living with him. His daughter worked and helped him out with money.
7. In the course of the interview Mr Cinque said that he did not smoke. He said that his wife smoked Superking Lights. Now and again, he later accepted, he had "a little hand-rolling tobacco." His last cigarette had been "about two days ago". His daughter smoked some of the tobacco, a pouch every two weeks, and his son smoked very little. His wife, he explained, smoked a "sleeve" (i.e. 200 cigarettes) every ten days. (Mr Cinque's wife did not apparently speak English and was not interviewed.) Mr Cinque estimated that six kilos of tobacco would last them four months. He said that there were no cigarettes or tobacco left at home.
8. When the car was searched it was found to contain twelve litre bottles of vodka, six 700mm bottles of "Baileys", 117 litres of wine, six kilos of hand-rolling tobacco, 2400 cigarettes and 60 cigarillos.
9. Accounting for the visit on 10 December, Mr Cinque said that he had spent about £1000 in cash. This had come from savings, borrowings and credit cards. He had borrowed about £400-500 from banks and using credit cards. He had approximately £150 left in the bank and didn't have any other savings. When he had travelled some three weeks previously he had spent around £400.
10. The vehicle, when searched, had been found to contain no evidence of smoking. In particular the ashtrays were spotless. Mr Cinque's wife had no cigarettes, tobacco, matches or lighter in her handbag.
11. On the day of the seizure a decision was made to offer restoration of the vehicle for a fee of £1090. In fact the excise duty on the excise goods brought in and seized was £1260. Mr Cinque made arrangements to pay the fee and the vehicle was returned to him that day. On 12 December 2003 Mr Cinque requested restoration of all of the seized goods and a refund of the £1090 fee he had paid for restoration of the vehicle. The Commissioners notified him, by letter of 6 January 2004, that the seized goods would not be restored. In the absence of any requirement to review the decision not to offer the goods for restoration, the Commissioners wrote to Mr Cinque on 20 January 2004 and notified him that, upon review, the decision to restore the vehicle upon payment of the fee of £1090 would be upheld. The review officer, Mrs D C Gillespie, attended and gave evidence at the hearing.
12. There is no dispute about the technical provisions of the law. The sole question arises in the context of Customs and Excise Management Act 1979 Section 152(b). This directs that the Commissioners may, as they see fit, "(b) restore subject to such conditions (if any) as they think proper, anything for fitted or seized under the Customs and Excise Acts."
13. Mr Cinque's notice of appeal, served on 16 February 2004, stated that his purpose in travelling to France and Belgium had been in preparation for his daughter's 18^th birthday party. It had explained that Italian people consider such a party to be very special when it comes to offering hospitality to friends and relations. It was also stated that, as Christmas was close, Mr Cinque had taken the opportunity to buy some tobacco as presents. Neither of these otherwise obvious explanations were given to the officer in the course of the interview. This raises the inference, at least, that they came to Mr Cinque's mind later and were not the real reasons for the purchases.
14. The letter stressed that he was well within the guidelines for purchases of goods for personal use. It is, we note, a fact that the quantities of goods were within the then current guidelines issued in pursuance of Regulation 4 of the Excise Goods Holding, Movement, Warehousing and Reds) Regulations 1992 and Regulation 15 of the Beer Regulations 1993 and Regulation 12 of the Tobacco Products Regulations 2001, each as amended by the Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002.
15. Mr Cinque's case before us was that he and his wife were carrying excise goods that were within the guidelines. He and his wife had bought the goods for their own use. In particular, he said, the vodka, the Baileys and the wine had all been purchased for consumption at the celebrations to be held to mark the occasion of their daughter's birthday and Christmas. The hand-rolling tobacco had been bought by him to be given away as Christmas presents. The amount bought by his wife had been, to the extent that it was not used for her own consumption, bought for Christmas presents. The same applied to the cigarettes and the cigarillos.
16. Mr Cinque accepted that he had said nothing, in the course of interview, about purchasing the tobacco and the alcohol for the purposes of their daughter's birthday celebrations and for Christmas presents. He said that he had been intimidated and scared in the course of the interview; that explained why he had not at that stage explained the real reason for carrying those goods.
17. Mr Cinque said that, as regards the kilo of tobacco purchased (according to the interview note) five to six weeks before 10 December, this had been used up because sometimes people came round to their house and he had offered it to them. The reason there was not a trace of cigarettes and smoking material, in either the car or his wife's handbag, was because she was forbidden to smoke in the car and she therefore carried no cigarettes while travelling. He accepted that no hand-rolling tobacco would be consumed at the daughter's birthday party; nonetheless if someone asked for it they might have been given some. We are not satisfied with Mr Cinque's explanations. There are too many inconsistencies. In particular we cannot accept that Mr Cinque regularly and frequently gave his guests pouches of tobacco.
18. Mr Cinque accepted that he made many and frequent visits to France and Belgium. The purchase of these. he said, was for general shopping. It was like going to a market. He and his wife often used their days off work to visit France and Belgium together. The records of trips to France by Mr Cinque's car showed, for example, that it had travelled under the Tunnel two days earlier (ie on 8 December). When this was put to him, Mr Cinque explained that he had had a day off and had taken a friend across. The friend had wanted to do a day's shopping. We find this extraordinarily difficult to believe. Without some evidence to support Mr Cinque's case that he crossed the Channel with such regularity to make purchases of ordinary non-excise goods, we cannot accept Mr Cinque's "innocent" explanations.
19. We think that Mr Cinque was importing the seized goods for a commercial purpose. We note that he was a regular traveller. In the car were six kilograms of hand-rolling tobacco. If Mr Cinque's account of the consumption of tobacco by himself and his daughter were correct, the six kilograms would last for about two years. What is more he had, on his own admission, bought a kilogram of hand-rolling tobacco some six to seven weeks before. On his explanation of the consumption of himself, his wife and his daughter, there should have been a large part of that kilogram left for further consumption. In fact Mr Cinque had claimed that he didn't smoke. There was, as we have noted, no evidence of any smoking in the vehicle which calls in question his explanation that his wife was a smoker. We find it highly improbable that, if Mr Cinque's wife did smoke, no cigarettes and no smoking equipment would be found in her handbag.
20. In the light of the declared incomes of Mr Cinque and his wife, it seems highly unlikely that he would have spent £1000 in cash on tobacco and alcohol when shopping on 10 December and a further £400 in the course of the visit some six weeks before. It seems to us much more likely that the hand-rolling tobacco and the cigarettes had been bought for commercial sale to third parties. The inference that he bought the vodka and the wine for a commercial purpose is equally strong.
21. For those reasons we are not satisfied that the tobacco and alcohol were purchased for the "own use" of Mr and Mrs Cinque.
22. We think that the decision to require a restoration fee of £1090 was proportionate in all the circumstances. It represents an amount which is lower than the excise duty on the value of the goods that were properly seized and the Commissioners are entitled to protect the legitimate market in the United Kingdom in tobacco, wine and spirits.
23. To conclude we think that the decision was reasonably arrived at and that the appeal should, therefore, be dismissed.

STEPHEN OLIVER QC

CHAIRMAN

RELEASED: 21 October 2004

LON/2004/8016