E00817

		EXCISE DUTY — non-restoration of seized vehicle — 42 kg hand-rolling tobacco, 9020 cigarettes, 60 cigarillos, 9.5 litres spirits and 5.25 litres of wine — 5 boxes of hand rolling tobacco for friends, who had paid for them — commercial transaction — not for own use — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

 
 	
	TERENCE MARTIN	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	 David S Porter (Chairman)
						 Warren Snowden (Member)	

Sitting in public in North Sheilds on 22 September 2004

The Appellant in person

Susan Hirst instructed by Solicitors for HM Customs and Excise for the Respondents

	© CROWN COPYRIGHT 2004

DECISION

1.	This is an appeal by Terence Martin (the Appellant) against a decision not to restore excise goods and a vehicle belonging to the Appellant, which were seized by the respondents on 3 May 2003. The vehicle, a Vauxhall Vecta registration R 461 ARO was seized at the Eastern Docks at Dover on his return from France. The Appellant alleged that he had intended to visit Disneyland but he had forgotten his credit card and he had travelled to Calais instead. He had bought the goods for himself, his wife and his friends, who had paid him for the goods, because he had not made any profit out of the transaction, he considered that he had bought them for his own use. The Respondents said that as his friends had paid for the goods, they could not be for the Appellants own use. They did not believe that any of the goods had been purchased for his use but that he intended to sell them.
The Parties
2. 	Susan Hirst, of counsel, appeared for the Commissioners and produced a bundle of documents for the Tribunal. The Appellant appeared in person. 
Preliminary legal argument.
3.	Susan Hirst referred the Tribunal to the decision of the Court of Appeal in Barry Gascoyne V H M Customs and Excise 2004 EWCA Civ 1162 and the judgement of Lord Justice Buxton. As a result of that decision, she was of the opinion  that it was not open to the tribunal to find any facts as to “own use”, because the Appellant had not requested that condemnation proceedings should be taken.  As a result, the goods were deemed forfeit under paragraph 5 of schedule 3 of the Customs and Excise Management Act 1979. Because the goods are deemed to be forfeit, they must have been acquired for “commercial purposes” and the tribunal could not therefore consider any facts, which would lead to a finding that the goods had been purchased by the Appellant for his own use.
4.	We note that the comments in this regard in the judgement were obiter. At paragraph 55 of the judgement Lord Justice Buxton stated :-
“In my view, therefore, in a case where the deeming provision under paragraph 5 are applied the tribunal can reopen those issues: though the tribunal will always have very well in mind, considerations of, or similar to, abuse of process in considering whether such issues should in fact be ventilated before it”
5.	Where there is a deemed decision and there has been no evidence as to the facts,  this tribunal is in apposition to consider those facts for the purposes of the review in question.  Although the Appellant did not challenge the Commissioners seizure of the car, cigarettes and tobacco in condemnation proceedings, and by virtue of paragraph 5 of schedule 3 to the Customs and Excise Management Act 1979 they are deemed to be duly condemned as forfeit, this does not, in the Tribunal’s opinion, prevent the Appellant arguing for the purposes of these proceedings that the goods were purchased for his own use in seeking a review of the Commissioners refusal to restore the goods to him. (See Lord Justice Buxton’s observations above and also para 49 of the judgement of Peter Smith in CEC v Dickinson [2003] EWHC 2358 (Ch). We therefore have decided that it is open to the Appellant to raise issues of “own use” in these proceedings.
6.	The Facts
The Appellant had intended to go to Disneyland with his daughter who was in the car with him. Unfortunately the car broke down and there was insufficient time to get to Disneyland and they decided to go to Calais instead. He purchased 42 kg of hand-rolling tobacco, 9.020 cigarettes, 60 cigarillos, 6.75 litres of spirits and 5.25 litres of wine.
7.	Both in his statement to the customs officers when he was stopped and again at the Tribunal he confirmed that he had bought five of the boxes of hand-rolling tobacco for his friends and that they had paid him for the goods. He had even planned to give them their change. As he had not made any profit out of the transaction he could not see why he should lose his car and the goods.
8.	Under The Excise Duties (Personal Reliefs) Order 1992 as amended at article 3 states:-
“Subject to the provisions of this Order a community traveller entering the United Kingdom shall be relieved from the payment of any duty of excise on excise goods which he has obtained for his own use in the course of cross-border shopping and which he has transported”
“Own Use” is defined in the Order as:-
“Own Use” includes use as a personal gift provided that if the person making the gift receives in consequence any money or money’s worth (including any reimbursements of expenses incurred in connection with obtaining the goods in question) his use shall not be regarded as own use for the purpose of this Order.”
9.	By virtue of The Customs and Excise Management Act 1979 any vehicle, which has been used for the carriage of the goods, is also liable to forfeiture, although the Commissioners may restore the vehicle on such terms as they think proper.  The Commissioners were not minded in this case to restore the vehicle.
10.	As the Appellant confirmed that he had been reimbursed for the five boxes, which he had bought for his friends those goods must by virtue of Article 3 above be commercial and they have therefore been rightfully forfeit.
11.	We find as fact the matters set out in paragraph 6 and 7 above.
	Summing up
12.	Susan Hirst reiterated that she believed that the Tribunal was wrong with regard to   the opinion as to the effect of the case of Barry Gascoyne V H M Customs and Excise 2004 EWCA Civ 1162 but agreed that as the appellant had purchased goods for his friends and work colleagues with money they had given him for that purpose. The goods must have been purchased for commercial purposes” and the commissioners acted properly in not restoring the goods and the vehicle.
13.	Terence Martin expressed concern that he had, since the seizure of the goods, been led to believe that if he could either show that the vehicle was owned by him and his wife and/or if he could produce a Doctors note as to his state of health the car would be restored to him. In the light of the hearing to day, and the fact that he had been paid by his friends to buy the tobacco, it was clear that there was never a possibility for the goods or the car to be restored. He was concerned that he had not been advised of that fact from the onset. He also alleged that his treatment when he was stopped was unacceptable.
The Decision
14.	In the light of the fact that the Appellant’s friends paid for the goods my colleague and I are satisfied that the reviewing officer’s decision not to restore the Appellant’s goods and car was one a reasonable body of Commissioners could have arrived at. 
15.	We also advised that we were unable to comment with regard to either the handling of the case nor the way in which he had been treated when he arrived at Dover. If he wished to pursue those matters he should follow the appropriate complaints procedures.
16.	The Respondents did not ask for any cost so we award none.

D S PORTER
CHAIRMAN
Release Date: 3 November 2004

MAN/2004/8039