E00967
EXCISE DUTY RESTORATION OF GOODS — other — condemnation proceedings before magistrates concluding that cigarettes properly forfeited as held for commercial purpose — allegations before tribunal of falsehood, gross exaggeration and lack of independence on part of reviewing officer — allegations held to be without foundation — appeal dismissed
MANCHESTER TRIBUNAL CENTRE
IAN WALTON DALZIEL Appellant
- and -
THE COMMISSIONERS FOR
HER MAJESTY'S REVENUE AND CUSTOMS Respondents
Tribunal: Michael Johnson (Chairman)
Roland Presho
Sitting in public in North Shields, Tyne and Wear on 20 June 2006
The Appellant did not attend and was not represented
Emma Piasecki, counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents
© CROWN COPYRIGHT 2006
DECISION
- This restoration appeal concerns 7,000 cigarettes seized from the Appellant by H M Customs and Excise ("Customs") at Newcastle Airport on 26 August 2004, as he was re-entering the UK on his return by air from Spain. The cigarettes were seized because Customs formed the view that they were being imported for a commercial purpose, and should therefore have been declared for payment of UK excise duty.
- The appeal is against the result of a formal departmental review conducted by Julie Wiggs of Customs. The review decision is dated 3 February 2005. In that decision, Ms Wiggs concluded that the Appellant had not provided any exceptional circumstances in his case that would warrant a deviation from Customs' current policy of non-restoration of excise goods seized as described.
- The Appellant's case was that the cigarettes were for his own use, and so should not have been subject to excise duty in the UK, payable in addition to the duty paid at the point of purchase in Spain. He required the institution of condemnation proceedings by Customs in the magistrates' court under schedule 3 of the Customs and Excise Management Act 1979.
- Those proceedings were heard by Gosforth Magistrates on 13 June 2005. The court rejected the Appellant's contention that the cigarettes were for his own use, and held that the goods were properly condemned as forfeit, for the reason that the importation was consistent with commercial use.
- Notwithstanding that ruling, the Appellant determined to continue with these tribunal proceedings. He attended before the Chairman at a directions hearing that took place in North Shields on 13 October 2005.
- At that hearing, the Appellant was very critical of Ms Wiggs. He reiterated the grounds of his appeal, which, he informed the tribunal, he was keen to carry forward, notwithstanding the ruling of Gosforth Magistrates. The grounds of his appeal are the following:
"The Review Officer has given false evidence [3 serious] misleading and gross exaggeration of evidence. The officer's reference to my character I find hurtful and offensive. I truly believe the review officer has not reviewed my case independently."
- At the hearing on 13 October 2005, the Chairman directed inter alia that Ms Wiggs should attend for cross-examination on her existing witness statement, and should have the opportunity to supplement that statement by an additional witness statement. The direction provided for the appeal to be listed for hearing.
- Notice of the hearing of the appeal on 20 June 2006 was given by the Manchester Tribunal Centre to the Appellant at his recorded address of 22 Rodney Street, Byker, Newcastle upon Tyne NE6 1RJ.
- This tribunal is surprised to find that, although Ms Wiggs has attended this hearing to answer any questions that the Appellant might have for her, the Appellant has not attended the present hearing. He has not sent a representative, and he has not been in contact with the tribunal to explain his absence.
- In these circumstances, we decided to proceed with the hearing in the Appellant's absence, pursuant to rule 26(2) of the Value Added Tax Tribunals Rules 1986, which apply to excise duty appeals as well as value added tax appeals.
- Miss Piasecki of counsel appeared for H M Revenue and Customs, as they now are. She submitted that whilst it is true that Ms Wiggs, in the review decision under appeal, had described the Appellant as being of bad character in the criminal sense, the evidence bore that out. Counsel passed to us antecedents showing that the Appellant has indeed various convictions for theft (shoplifting) before Newcastle Magistrates, as Ms Wiggs states in her review decision.
- The Appellant may find the reference of Ms Wiggs to his bad character to be hurtful, but it is an accurate reference, and not in our judgment a valid ground of appeal.
- So far as concerns the evidence surrounding the importation of the cigarettes, this was the subject of scrutiny by Gosforth Magistrates on 13 June 2005. This tribunal cannot, and should not attempt to, gainsay the findings made by the court then, let alone the conclusion of that court. It is not for this tribunal to investigate the acceptability or otherwise of the evidence pertaining to the issue of whether the importation was for own use or for a commercial purpose, which has been resolved by the court.
- The Appellant may be upset at the interpretation of the evidence given by Ms Wiggs in her review decision, but he cannot, in our judgment, avoid the conclusion that he is the one who has misled the authorities in respect of that issue.
- We completely reject the allegations of reckless exaggeration contained in the grounds of appeal. The style of Ms Wiggs' review decision was not to "pull punches", and, having regard to the outcome of the court hearing, this was in the event justified.
- As for the allegations that Ms Wiggs acted in a deliberately misleading way, and was guilty of falsehoods, we decide that there is no substance at all in these suggestions. Nor is there anything to suggest that Ms Wiggs did not perform her function of reviewing the Appellant's case in every way correctly. We are satisfied that she did her job properly in every respect.
- The conclusion of the review decision appears to us to be entirely correct. There was every reason not to restore the cigarettes in this case.
- We accordingly indicated at the conclusion of the hearing that this appeal was dismissed. This decision formally records the dismissal and the reasons for it. Miss Piasecki applied for costs of the proceedings quantified at £350. In view of the outcome of the appeal, this appeared to us to be appropriate and reasonable, so we award costs against the Appellant and in favour of the Respondents in that amount.
MICHAEL JOHNSON
CHAIRMAN
Release Date: 5 July 2006
MAN/05/8008
