E00825

	EXCISE GOODS  — first appeal allowed because incorrect burden of proof applied and further review directed — second review leading to conclusion that refusal to restore be upheld — concealment of previous trips — inconsistent explanations of claimed consumption — unconvincing explanation of source and use of funds — decision not to restore reasonable — appeal dismissed.

MANCHESTER TRIBUNAL CENTRE

 
 	
	GORDON GRIMSHAW	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	 Colin Bishopp (Chairman)
						 Roland Presho FCMA	

Sitting in public in North Shields on 2 November 2004

The appellant in person

Susan Hirst, counsel, instructed by the Solicitor for HM Customs and Excise, for the respondents

	© CROWN COPYRIGHT 2004

DECISION

1.	This is an appeal by Gordon Grimshaw against a decision of the respondent Commissioners, set out in a letter written by Deborah Gillespie and dated 13 May 2004, that various excise goods seized from him at Coquelles on 30 March 2002 should not be restored.  Mrs Gillespie’s letter was written following a direction made by this tribunal after hearing Mr Grimshaw’s appeal against an earlier decision, on review, upholding the respondents’ original refusal to restore the goods.
2.	On this occasion, as at the hearing of his first appeal, Mr Grimshaw represented himself and gave evidence.  The respondents were represented by Susan Hirst of counsel, who had not appeared at the hearing of the first appeal.  We heard no oral evidence from the respondents, but had a very brief statement from Mrs Gillespie, confirming her decision, and a bundle of documents.
3.	There was no dispute about the underlying facts.  Mr Grimshaw arrived at Coquelles at about 11.00 pm on 29 March 2002, in his car.  He was accompanied by his brother and their respective wives.  The car contained 21,800 cigarettes, 6.25 kg of hand rolling tobacco and modest quantities of alcoholic drinks.  The four travellers were interviewed, initially together and then separately.  The officer dealing with the matter was not satisfied that the goods had been bought for the travellers’ own use, and he seized them together with the car, although the car was  immediately restored on humanitarian grounds.  
4.	Mr Grimshaw did not challenge the seizure of his goods, by requiring the respondents to bring condemnation proceedings in the magistrates’ court, and they were accordingly deemed to be condemned as forfeit to the Crown.  He did ask for their restoration; that was refused and he asked for a review of the refusal.  The review decision upholding the refusal, as we have said, was the subject of his first appeal to the tribunal.  The appeal was allowed upon the grounds that the decision had been based upon the premise that the burden of proof (of establishing that goods were for his own consumption) was upon the traveller, as the law of the United Kingdom provided at the time, whereas European law required that it was for Customs to be satisfied, instead, that the goods had been imported for commercial purposes.  So much was decided in R (Hoverspeed) v Customs and Excise Commissioners [2003] STC 1273.   The law of the United Kingdom was later amended in order to place the burden of proof, to that extent, on the Commissioners.
5.	The reasons given for the decision to seize Mr Grimshaw’s goods (and those of his travelling companions) were that they had all stated that they had last travelled abroad in October 2001 when in fact they had travelled together in December 2001 and January 2002; that the full quantities of goods had not been declared; that there were indications that Mr Grimshaw and his wife were not, as they claimed, heavy smokers but may even not have smoked at all; that there were discrepancies between their claimed rates of consumption and the estimates given by the travellers of the period for which the goods would last them; and that their explanations of how much they had spent, and the source of the funds, did not tally.
6.	It was apparent that, at the hearing of the first appeal, Mr Grimshaw had argued (as he did before us) that the goods were, in fact, for his and his companions’ own consumption.  Miss Hirst argued that whether or not the goods were for the travellers’ own consumption is not an issue for this tribunal, since once the goods have been condemned as forfeit to the Crown, we have no jurisdiction to look behind the condemnation.  Mr Grimshaw could and should have raised the issue in condemnation proceedings, she said, but did not do so.  We are not persuaded the argument is correct (and it is impossible to reconcile with the Commissioners’ own approach, of which Mrs Gillespie’s letter is an example, of dealing with the reasons why it has been concluded that the importation was not for own use and then treating that conclusion as the justification for the refusal to restore) but in the event we do not need to deal with the issue.
7.	The question we must ask ourselves is not whether the goods were to be imported for the traveller’s own use, but whether Mrs Gillespie’s decision that the goods should not be restored was one at which she could reasonably have arrived.  That is clear from the statutory provision (section 16(4) of the Finance Act 1994) which confers jurisdiction on the tribunal.  We do not need to agree with Mrs Gillespie; if she could reasonably arrive at her conclusion, the appeal must be dismissed.  In this case, we are quite satisfied that the decision was reasonable.  
8.	Mr Grimshaw’s explanation of the failure, by all four of the travellers, to disclose the trips they had made together in December 2001 and January 2002 was that they were tired and under stress when the question was put, and did not realise that they were being asked about trips abroad in a general sense, rather than those made specifically for buying tobacco and cigarettes.  We do not accept that explanation; it is not consistent with the manner in which the question was put and the answer was given as it is set out in the interviewing officers’ notebooks (each traveller has signed the record of his or her interview as a true record, and none has taken the opportunity of correcting a misleading statement).  We agree with Mrs Gillespie that the inference to be drawn is that the travellers agreed in advance to conceal the two trips they made in December 2001 and January 2002 in order to conceal also the fact that they had imported excise goods on those occasions.  We accept too that the explanations given by Mr Grimshaw and his wife about their financial resources and the amounts they had spent do not suggest a genuine purchase for their own use.  It is clear that Mr and Mrs Grimshaw do not have money to spare, yet they were quite careless about the amount they had spent.  We agree also with Mrs Gillespie that what they said about their consumption makes little sense; certainly it is difficult to understand why Mr Grimshaw should claim to smoke hand rolling tobacco only when he ran out of manufactured cigarettes, while his wife said that he normally smoked hand rolled cigarettes, and only occasionally manufactured cigarettes.
9.	In our view it cannot be an unreasonable inference that travellers who conceal trips they have made abroad, give conflicting information and provide unconvincing explanations are not telling the whole truth, and are attempting to conceal the true reason for their importation of goods.  We have concluded that it is more likely than not that Mr Grimshaw was intending to sell at least some of the goods, and that the Commissioners’ conclusion that this was, at least in part, a commercial importation cannot be regarded as unreasonable.  No reason was advanced by Mr Grimshaw why the respondents should nevertheless restore the goods to him and in these circumstances we are satisfied that their refusal to restore them cannot be faulted. 
10.	The appeal is dismissed. 

COLIN BISHOPP
CHAIRMAN
Release Date: 11 November 2004

MAN/2004/8070