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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 >> Haywood v Customs and Excise [2005] UKVAT(Excise) E00863 (29 March 2005) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2005/E00863.html Cite as: [2005] UKVAT(Excise) E863, [2005] UKVAT(Excise) E00863

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E00863

EXCISE DUTY — restoration of seized goods and vehicle — reasonableness of the Commissioners refusal to restore — whether the tribunal can consider own use — hardship — appeal allowed in part and further review directed

MANCHESTER TRIBUNAL CENTRE

KEVIN HAYWOOD Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Lady Mitting (Chairman)

Rayna Dean MA FCA

Sitting in public in Birmingham on 24 February 2005

The Appellant appeared in person

James Puzey, of counsel, instructed by the Solicitor's office of HM Customs and Excise for the Respondents

© CROWN COPYRIGHT 2005


 


DECISION
1. The decision under appeal is that of the Commissioners, taken on review, dated 27 August 2004, to refuse restoration of seized excise goods and a seized Landrover Discovery N13 STY.
2. Mr Haywood gave oral evidence but witness statements having been served and not challenged, the Commissioners called no oral evidence.

The background to the appeal

3. On 16 April 2004, Mr Haywood was intercepted at Dover Eastern docks. He was driving a Landrover Discovery and was accompanied by two passengers, a Mr Clive Shirtcliffe and Mr Gordon Cunningham. The car was found to contain the following excise goods:

5 kg Golden Virginia Tobacco

5 kg Old Holbourn Tobacco

19 kg Drum Tobacco

5 kg Samson Tobacco

The goods and the vehicle were seized.

4. By undated letter, Mr Haywood asked for his vehicle to be returned to him, explaining that the vehicle was in fact his partners and she needed it because she was disabled. He also returned, dated 16 April 2004, "Letter B". By letter dated 11 May 2004, solicitors acting on behalf of all three men returned "Letter A", appealing against the seizure. By letter dated 13 May 2004, the Respondents wrote to the Solicitors seeking confirmation of whether or not the men were in fact seeking restoration or appealing against the seizure.
5. By letter dated 17 May 2004 and signed by all three men, Mr Haywood wrote in the following terms:

"To whom it may concern

I'm writing to you to about the seizure of my car and goods. I sent all the relevant forms in and I thought I had to get a solicitor as well which I did. Since having a conversation with one of your employees I didn't need to appoint a solicitor at this stage so I'm sending all our signatures in to withdraw the representation of the solicitor and would like it to be dealt with by one of your managers at this stage.

Sorry for any inconvenience caused to you. Thank You."

6. By letter dated 20 May 2004, the Commissioners wrote to Mr Haywood again seeking confirmation of whether or not they wished to appeal against seizure or to request restoration. By undated letter, Mr Haywood replied that they were requesting restoration of the vehicle and goods. By letter dated 3 June 2004, the Commissioners again wrote to Mr Haywood asking whether they wished to withdraw their appeal against seizure and advising him that unless written confirmation of withdrawal was received, condemnation proceedings would be commenced and restoration would not be considered until such time as the condemnation proceedings had been concluded. Mr Haywood replied to the effect that they wished to withdraw their appeal against seizure and confirmation that this had been done was sent to Mr Haywood by letter dated 9 June 2004.
7. By letters dated 9 July 2004, Mr T Brookes of the Post Seizure Unit refused all three men restoration. On 14 July 2004, the Commissioners received a letter from Mr Haywood's partner, Ms Michelle Webster. She referred to a telephone conversation which she had had with Mr Brookes and in which he had obviously advised her what to do next and in the light of that conversation, she was requesting a review of the decision to refuse restoration. She explained that she had been registered disabled since 1996, suffering from deep vein thrombosis and needing the vehicle to attend weekly hospital appointments for blood tests. She explained that having been without a car for three months, she had lost her independence and it was causing her real distress. She also explained that the car would have been transferred into her name but for the fact that since January 2004, Mr Haywood had had a knee operation and she was having tests for breast and ovarian cancer so transferring ownership of the car was the last thing on her mind. She said that the car had been bought on 11 February 2004 and she enclosed the registration certificate and the statement of insurance showing her as a named driver. She also enclosed confirmation of her disability benefit revealing that as from 9 September 1996, indefinitely, she would be in receipt of a higher rate mobility component within her disability living allowance. She concluded that she would be willing to provide any further information needed or indeed discuss the case with them by telephone if they wished.
8. The review of the decision was carried out by Ms D Gillespie and was notified to Mr Haywood and Ms Webster by letter dated 27 August 2004. Restoration of both goods and vehicle was refused. Mr Haywood then appealed to the Tribunal.

The Evidence

9. The events of the 16 April 2004 were gleaned from the witness statements. When the vehicle was stopped, Mr Haywood told the officers that they were out for a day, the purpose of the journey being to buy tobacco. Mr Haywood explained that he travelled abroad "quite regularly" and had been the previous week but he had not bought any tobacco then. He said that they had each bought approximately £500 worth, his supply being for himself and for his "Mrs". He estimated that "with all of us smoking it", it would barely last three months. All three men agreed to stay for further questioning.
10. When further questioned, Mr Haywood said that he had purchased between £650 and £660 worth and that "about 30 packs of Virginia" (15 kg) belonged to him. He had purchased the tobacco himself and had received no monetary contribution towards it. He had last travelled the previous week to Belgium where he had bought chocolate, sweets and a couple of packs of tobacco. He was asked why he had returned only a week later for 30 more packs, to which he replied that he just had done but he did not think he would be coming again as the novelty was wearing off. He expected the tobacco to last approximately six months, "knowing my lot". When asked how much he smoked he answered one pack per week, explaining that he smoked non-stop. The tobacco would also be smoked by his girlfriend, his nephews Gareth and Jamie and their girlfriends. He explained that Gareth and Jamie were both drug addicts and had been the responsibility of Mr Haywood since their father had committed suicide. He gave them the tobacco to try and prevent them taking other stuff. He couldn't say how many cigarettes he got from a pouch but he smoked "a pouch easy" per day. He explained that he was not working as he had been in a car crash but he was getting ready to go back to work. He was not on any benefits because he had sold a property and his benefits had thus been stopped. He explained that before the previous week he had travelled approximately one month before that but he had only ever been over three or four times. A month before he had brought back "two ten packs". The interview note records that Mr Haywood was then asked if he had been stopped by Customs before, to which he replied "only when you come through the Airport". He said that when they had made their purchases, the lady in the shop didn't want to do it individually and the goods were therefore bought together and they each put in their contribution, Mr Haywood's being £660. He did not know how much Ms Webster smoked but she smoked them "one after the other". Mr Haywood then read the interview note and signed the notebook as an accurate account.
11. Mr Cunningham, when interviewed, said that he had purchased Golden Virginia and Drum, having spent about £720. He also said that they had gone into the shop together and had all handed over their money. He had had £800 and he went back into the shop and bought a little bit more with the money he had left over. He had last travelled abroad two weeks before but not for tobacco. He had made four cross channel trips in the last 12 months. He smoked Golden Virginia and Drum and got through about two pouches a week. He was expecting his share of the tobacco to last some seven or eight months. He had never bought it before from abroad.
12. Mr Shirtcliffe, in interview, said that he had paid approximately £650 for his share of the goods and he claimed ownership to some Golden Virginia, Samson, Old Holbourn and Drum. He smoked approximately three to three and a half pouches per week and thought the goods would last him approximately six months as his wife and sons, who were pretty heavy smokers, would also be smoking it.
13. After the three interviews, the three interviewing officers discussed what they had heard with each other and their senior officer and the decision was made that the goods and the vehicle would be seized. The reasons given for the seizure were as follows:

(i) A large quantity had been imported

(ii) Initially, Mr Haywood did not know how much he had purchased but later declared 300 pouches

(iii) Inconsistencies in the three stories about the amount spent

(iv) The quantities declared by each individual did not tally with the amount of goods

(v) Mr Haywood's unrealistic consumption rate – ten pouches per week

(vi) Unrealistic amount of time that the goods would last for

(vii) A large quantity were being given away to family

(viii) He was currently off sick but had spent a large amount on tobacco

(ix) He had travelled abroad on the 9 April but said that he had only purchased 20 pouches and it was unreasonable to return one week later to purchase 300

(x) A regular traveller

14. When it fell to Mrs Gillespie to review the original decision not to restore, she took a fresh look at the case and clearly considered it in some detail. She summarised the contents of all three interviews and the correspondence received from Mr Haywood and Ms Webster. She went on to explain the Commissioners' policies in respect of restoration of excise goods and private vehicles. It was general policy that seized excise goods would not normally be restored. Equally, it was the general policy that private vehicles used for the improper importation of excise goods would also not be restored. However, at the discretion of the Commissioners, vehicles could be restored on payment of a fee if the excise goods had been destined for supply on a "not for profit" basis, for example for reimbursement or if they were destined for supply for profit but it was a first occurrence and the quantity of excise goods was small.
15. Mrs Gillespie then drew attention to five factors. First, in carrying 55.5 kg of tobacco, each traveller was importing over six times the guide level of 3 kg. 55.5 kg was, in Mrs Gillespie's view, a commercial quantity of tobacco worth over £10,000 in the UK shops and likely to damage legitimate trade. Secondly, if Mr Haywood smoked ten pouches per week, on a generally accepted estimate of 80 – 100 roll ups per pouch, he would be smoking some 114 cigarettes per day which was not credible. He also did not know how many he obtained from a pouch or how much Ms Webster smoked. Thirdly, he had paid over £600 for his share of the tobacco even though he was not earning at the time. He had travelled only the previous week and a month before that. She did not feel it plausible that the previous week they had only bought chocolates and then this week, when stopped, had been found to have bought 55 kg. Fourth, the quantity imported would be sufficient to last three average smokers three years which would exceed its shelf life. She also found it implausible that he was giving away such a large quantity. Fifthly, Mr Haywood had paid cash for his goods whereas travellers buying for their own use usually paid by other means and payment by cash was a common feature of smuggling.
16. Mrs Gillespie then went on to quote Phillips LJ in Lindsay v Customs and Excise Commissioners 2002 1WLR 1766:

"[63] … Those who deliberately use their cars to further fraudulent commercial ventures in the knowledge that if they are caught their cars will be rendered liable to forfeiture cannot reasonably be heard to complain if they lose those vehicles. Nor does it seem to me that, in such circumstances, the value of the car used need be taken into consideration. Those circumstances will normally take the case beyond the threshold where that factor can carry significant weight in the balance. Cases of exceptional hardship must always, of course, be given due consideration."

17. Although Mrs Gillespie does not specifically say so, it is implicit in her letter that she viewed the purchase as a for profit smuggling venture. 55.5 kg did not qualify as a "small quantity" and this aspect of the Commissioners' policy therefore would not be applied.
18. The only other matter that she considered was that of hardship which she dismissed by sympathising with Ms Webster's difficulty but saying it was something which should have been considered prior to deciding to import such a large quantity. The hardship caused to Ms Webster was not exceptional. She concluded that in all the circumstances, neither goods nor vehicle should be restored.

The evidence of the Appellant

19. Mr Haywood told us that he had sold a couple of houses and had not repurchased and at the time of the seizure he had £70,000 in his bank account. He could therefore well afford the tobacco even though he was not at the time employed and had not been for some 15 months following a car accident. He said that when he told the officer that he consumed ten pouches per week, this was in fact between the whole family. He himself smoked five or six pouches per week. He had brought that much back because he was desperate to stop his nephews from thieving (They were, by the time of the hearing, we were told, both in prison). None of the family were going to reimburse him for any of the tobacco and none of it was for sale to any body else. He had never brought back this much before despite having made some three or four trips. He and his friends were not intending to go back again in the near future.
20. In his evidence, Mr Haywood volunteered that he and his, on that occasion, three travelling companions had in fact been stopped by Customs on their previous trip the week before because there was a warrant for arrest out for one of the passengers. He told us that the vehicle had been thoroughly searched but nothing had been found. Mr Puzey asked him why he had not mentioned this interception and search when he was questioned by the officers. His reply was that the officers already knew about that incident because they had already mentioned it to him. He told us that in fact, if the Commissioners checked, they should find a record of that interception.
21. Mr Haywood also told us that in fact it was not 15 kg that belonged to him but 22 kg. He had initially bought 15 kg but had then gone back into another shop to purchase another seven. He told us that the vehicle in fact belonged to Ms Webster. He accepted that it had been purchased in his name, out of his money – the sale proceeds of the property, which had been in his sole name – it had always been his intention, however, to transfer it to Ms Webster but had not got round to it. He purchased a replacement vehicle within a day or two of the Landrover being seized but he could only afford a cheap car and had to buy one without power steering. Ms Webster was too ill and weak to drive a car without power steering and this replacement car was no use to her.
22. Mr Haywood was questioned at some length by Mr Puzey about why he had not pursued the appeal against seizure. Mr Haywood said that he had telephoned Customs and had been advised by the person to whom he spoke that he stood a better chance of recovering his vehicle if he abandoned the appeal against seizure and applied for restoration. He said that he hadn't really understood any of it but he would have been perfectly willing to go to court if need be.
23. Of Ms Webster's medical condition, he told us that she had had leukaemia in her teens. She still had it but it was currently in remission. It had, however, left her with a deep vein thrombosis for which she had to have daily Warfarin medication and she also had to go to hospital once or twice every week for blood tests. She was immobile and unable to handle stress. Although there was a bus running between her home and the hospital, she would not be able to use the bus because any knock or jolt could cause bruising and internal bleeding. She was, therefore, utterly dependent upon her own transport and, as we have already mentioned, she could not use the replacement vehicle because she was not strong enough to handle a car without power steering.

The jurisdiction of the Tribunal

24. The jurisdiction of the Tribunal is strictly limited and is defined by Section 16(4) of the Finance Act 1994 which provides that:

"(4) In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of an appeal tribunal on an appeal under this section shall be confined to a power where the tribunal are satisfied that the Commissioners or other person making the decision could not reasonably have arrived at it, to do one or more of the following, that is to say –

(a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct;

(b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision; and

(c) in the case of a decision which has already been acted on or taken effect and cannot be remedied by a further review, to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future."

25. In exercising its jurisdiction, the test of reasonableness requires the Tribunal to ask whether the decision was one which no reasonable panel of Commissioners could have come to; whether some irrelevant matter had been taken into account; whether some matter which should have been taken into account had been ignored or there had been some error of law.
26. Mr Puzey submitted that it was not open to us as a tribunal in this case to consider the issue of own use. Referring us to paragraphs 51 to 56 of Gascoyne v HM Customs and Excise 2004 EWCA Civ 1162, his contention was that there was no justification in dis-applying the deeming provision in paragraph 5 of Schedule 3 Customs and Excise Management Act 1979 (CEMA). Mr Puzey did not accept that Mr Haywood had spoken to a Customs officer or that he had been advised to withdraw the appeal against seizure and he stressed the need for the Tribunal to have in mind at all times the consideration of an abuse of process.

We set out below paragraphs 54 and 55 of Gascoyne:

"As it seems to me, for an importer to be completely shut out in the only tribunal before which he has in fact appeared from ventilating the matters that are deemed to have been decided against him because of paragraph 5 of Schedule 3 does not adequately enable him to assert his Convention rights.

"In my view, therefore, in a case where the deeming provisions 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."

27. We accept Mr Haywood's evidence that he did speak by telephone with a Customs officer and did discuss with him the merits of the alternative routes he could take. We are so persuaded for two reasons. First, we know from Ms Webster's letter of 14 July 2004, when she refers to a telephone conversation with Mr Brookes, that Mr Haywood and Ms Webster were a couple who would pick up a telephone and query what they should do if they were in any doubt. Secondly, Mr Haywood's letter of 17 May 2004 quite clearly refers to having had such a conversation and we see no reason why he should have lied in that letter. The reference to a conversation adds nothing to the intention of the letter and in our view is merely a statement of fact.
28. We accept Mr Puzey's contention that we do not know the name of the officer to whom Mr Haywood spoke and we do not know what was in the conversation between the two of them. We believe, however, that Mr Haywood's single aim was to obtain back his vehicle and that he understood from the officer that his best chance of getting it back would be to withdraw the seizure proceedings and apply for restoration. It may be that Mr Haywood misunderstood what he was being told. It may be that he was in fact so advised. It may well be that he was confused by the options open to him in what is confusing legislation. Of one thing, we are quite certain. Mr Haywood had no idea of the implications of withdrawing the appeal against seizure and that it could remove from him his only opportunity to plead the goods were for his own use. We do not believe it would be an abuse of the process such as Buxton LJ had in mind in paragraph 55. We believe that we are entitled to re-open the issue of own use and to make findings of fact thereon.

Submissions

29. Mr Haywood's principal and in effect his only submission was that the tobacco had been purchased solely for the use of himself and his immediate family and none of it was intended to be passed on either at cost or for profit.
30. Mr Puzey pointed out the inconsistencies in the evidence of the three travellers over amounts and funding. He submitted that it was impossible to be certain which goods each traveller was importing and consequently one could not be certain that there were in fact three separate importations and there could just as easily have been one single venture by one of the travellers using the other two as cover. He stressed the incredibility of the consumption rate advanced by Mr Haywood in interview and the fact that he then back-tracked on that in his oral evidence. He pointed out that Mr Haywood did not mention in interview that he had been stopped the previous week, whereas he now told the Tribunal that he had been stopped and searched.
31. The value of Mr Haywood's vehicle was accepted by the Commissioners to be £13,500. The retail value in the United Kingdom of the goods purchased was over £10,000 and the value of the duty evaded on 55.5 kg was £5,628.81. Mr Puzey submitted that the vehicle had definitely been used the week before and may have been used on previous occasions and if similar amounts had been brought back then, the value of the vehicle was erased by the amount of duty evaded. It was Mr Puzey's submission that there was no reason to suppose that any less had been brought in previously but in any event in a commercial, for proft, importation, the value of the vehicle was immaterial.

Conclusions

32. Our first finding relates to the ownership of the vehicle. We do not accept the contention of Ms Webster, in her letter, or Mr Haywood in oral evidence, that the vehicle belonged to Ms Webster. It was purchased by Mr Haywood out of Mr Haywood's own money, with no financial contribution from Ms Webster. We did not see the registration document but had been told that the vehicle was registered in Mr Haywood's name and the insurance certificate was quite clearly in Mr Haywood's name with Mr Haywood being named as driver 1 and Ms Webster as driver 2. We find that the vehicle belonged to Mr Haywood.
33. A traveller is entitled to bring into the UK, without payment of duty, excise goods for his own use. "Own use" is defined as being for one's own personal consumption or as a personal gift, provided that the person making the gift receives no money in exchange. If any money changes hands, whether it be for profit or merely by way of reimbursement, then this is not for one's own use but is commercial, although as can be seen from the Commissioners' policy, different consequences follow in the consideration of restoration.
34. Mrs Gillespie clearly viewed the importation as being of a commercial nature and for profit and as such, in the light of the Commissioners' policy, the natural consequence would be non-restoration of goods and vehicle. It is implicit, although not expressly stated, in the review letter, that Mrs Gillespie viewed the importation as a single venture. There is no positive evidence to support this suggestion and indeed Mr Puzey put it no higher, in his submissions to us, that we could not be sure that it was three separate importations. We accept there were inconsistencies in the evidence of the men but we are not prepared, on the evidence before us, to find that this was one single venture. On balance, we find that each of the travellers made their own purchase. This was Mr Haywood's oral evidence, although with 22 kg he would have purchased slightly over one third. It was also the evidence of all three in their separate interviews. There was no corroborative evidence either way, the receipts being incomplete and inconclusive.
35. There remains the question of what the three men intended to do with their purchases. We can make no findings in respect of Mr Cunningham or Mr Shirtcliffe. The only evidence from them was the transcript of their interviews in which they each clearly say that the tobacco was for themselves and their family with no suggestion of any money changing hands. However, without hearing from them or testing their evidence, we cannot say how true this was. We do, however, note the amounts imported, that they were frequent travellers and that in their interviews they gave estimates of duration of the tobacco which were not consistent with their smoking patterns. For the Commissioners to view the importation as commercial it cannot be considered unreasonable. As for Mr Haywood, he maintained throughout that his purchase was for himself and his immediate family by way of gift. We are prepared to accept that in part this was true but we doubt that the entire purchase was. Although in his oral evidence, Mr Haywood told us that the estimated consumption rate of 10 pouches per week, given in interview was, in fact, meant to be between the whole family, it was perfectly clear he was answering in respect of himself alone and this rate is not credible. Even though Mr Haywood had money in the bank, we find it unlikely he would have purchased 22 kg, which is a very large amount, to give away. We doubt that his family were going to pay for any of the tobacco, even at cost, as, from what we heard of them, it seems unlikely that any of them could have afforded it. This leaves the only conclusion that at least some of the tobacco was destined for distribution beyond the family, although whether at cost or for profit, there is no positive evidence either way. However, if it were purely and simply a matter of reimbursement, we cannot imagine why Mr Haywood would not have told us.
36. Mr Haywood was certainly what one would term a frequent traveller. He denied any purchase on this scale on any of the previous visits although it seems unlikely to us that the men would make the return journey so frequently, all the way from Derbyshire to Belgium, without making any such purchase. However, we are inclined to accept Mr Haywood's evidence that on the previous trip, at least, there was no significant importation. That he was stopped and searched would be a matter of record. He told us that the officers mentioned the interception to him before he did, again implying that it was on record. We think it unlikely that Mr Haywood would have lied about something which could and, we assume still can, so easily be verified.
37. In summary, therefore, we find that this was not one single importation but three separate ones. We also find that of Mr Haywood's purchase, a part of it at least was for distribution for money, whether for cost or for profit, we cannot say with certainty but it would certainly not be an unreasonable view to take that it was for profit.
38. Against the background of these findings, how reasonable was Mrs Gillespie's refusal to restore both goods and vehicle? As far as the goods were concerned, we do not believe her decision was unreasonable. Section 141(1) CEMA empowers the Commissioners to seize any goods mixed, packed or found with dutiable goods. Given therefore, our view that at least some element of the importation was commercial, then it would not be unreasonable to refuse restoration of the entirety. We believe that the inference that at least some part of Mr Haywood's importation was commercial, was sufficiently strong to justify the non-restoration of the goods and we uphold this aspect of the decision.
39. With respect to the vehicle, different considerations apply. Given the, as we have found, commercial nature of at least a part of the transaction, Mrs Gillespie was certainly justified in considering refusal to restore but we believe she should have given further thought to whether there should have been restoration on terms rather than a refusal. We believe that further thought should be given to the question of proportionality, especially given our view that this was not one single importation but three individual ones.
40. We do not believe Mrs Gillespie gave sufficient regard to the claim of hardship. The evidence which Mrs Gillespie had was Ms Webster's letter to the effect that she had a deep vein thrombosis and she also had in front of her the evidence of Ms Webster's disability living allowance with a higher rate mobility component. Mrs Gillespie makes no reference to this aspect of Ms Webster's disability and we have no idea how much weight she gave it or, if she disregarded it, why she did so. We believe that she should have made further specific enquiries of Ms Webster's medical condition before dismissing it. Of course, Mrs Gillespie would not have known what we were to be told of Ms Webster's condition by Mr Haywood and if his evidence is borne out, then clearly the disability is rather greater than Mrs Gillespie appears to have believed.
41. For these reasons, we believe the decision to refuse restoration of the vehicle was unreasonable and, in line with our jurisdiction, we allow the appeal in respect of the vehicle and direct that the Commissioners should carry out a further review. We do not expect the Commissioners to accept, uncorroborated, Mr Haywood's evidence as to Ms Webster's condition. We therefore direct that, within 21 days of the release of this decision, Mr Haywood should submit to the Commissioners a medical report from either Ms Webster's general practitioner or her consultant, detailing the precise nature of her condition(s) and disabilities and confirming that for the three months beginning 18 April 2004, Ms Webster had to attend hospital at least once every week for blood tests. The report should also specifically comment upon how able Ms Webster would be to travel by bus or whether this would be as dangerous to her as Mr Haywood contends and how able she would be to drive a car without power steering. If no such medical evidence is submitted to the Commissioners then we see no reason why they should take Mr Haywood's description of the condition into account in their re-review. We also wish Mr Haywood to supply to the Commissioners evidence that the vehicle he purchased immediately after the seizure did not have power steering. We suggest this be done by production of the purchase documentation of the vehicle showing the make and model and then perhaps the manufacturers' specification for it, showing it to be without power steering.

Our decision

42. The appeal is allowed in respect of the vehicle only and pursuant to that decision and to section 16(4) Finance Act 1994 we make the following directions:

(i) within 21 days of the release of this decision, Mr Haywood shall supply to HM Customs and Excise, Review Team, Detection South Region, Crownhill Court, Tailyour Road, Crownhill, Plymouth, Devon PL6 5BZ, the medical evidence and evidence in respect of the vehicle as outlined in paragraph 41 above.

(ii) Within 30 days thereafter, the Commissioners shall conduct a further review of the decision not to restore the vehicle, such a review to be carried out by an officer who has no previous involvement with the case.

(iii) There is no order as to costs.

LADY MITTING

CHAIRMAN
Release Date: 29 March 2005

MAN/04/8099