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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 >> Belkiss v Revenue & Customs [2008] UKVAT(Excise) E01117 (30 May 2008) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01117.html Cite as: [2008] UKVAT(Excise) E1117, [2008] UKVAT(Excise) E01117

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E01117

EXCISE DUTY – Restoration appeal – restoration of excise goods seized – Appellant's case was that they were imported for his own use – Decision that it would not be an abuse of this Tribunal's process to consider this issue notwithstanding the Appellant's indication to the Commissioners that he did not wish to contest the legality of the seizure in the Magistrates' Court – Decision on the facts that the Customs officers' decision not to restore the goods on the grounds that they were imported for commercial purposes was not unreasonable – appeal dismissed

LONDON TRIBUNAL CENTRE

JAMAL BELKISS Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY'S

REVENUE AND CUSTOMS Respondents

Tribunal: JOHN WALTERS QC (Chairman)

MRS NORAH CLARKE

Sitting in public in Cardiff on 12 March 2008

Mr. Jamal Belkiss, the Appellant, represented himself

Mr. Rupert Jones, Counsel, instructed by the Solicitor for HM Revenue and Customs, represented the Respondents

© CROWN COPYRIGHT 2008


 


DECISION
1. On 21 February 2007, Mr. Jamal Belkiss, the Appellant, was stopped at Eastern Docks at Dover, returning from France (he had also been to Belgium) in a Peugeot car.
2. After a search of the car, Customs officers found a total of 6 kilos. of hand-rolling tobacco. Answering questions put to him before the search, the Appellant had said that he had purchased and was importing 4 kilos.
3. The Appellant was then interviewed, and following the interview the 6 kilos. of hand-rolling tobacco and the car were seized under s.139(1) Customs and Excise Management Act 1979. The car was restored to him free of charge however, apparently on humanitarian grounds, because the Appellant had said that he had recently had an operation on his back.
4. The Appellant was concerned to recover the hand-rolling tobacco which had been seized, and involved his MP in the matter. In the event he filled out pro forma letters in which he both appealed against the legality of the seizure of the hand-rolling tobacco and requested restoration of it.
5. Acting on receipt of the appeal against the legality of the seizure, the Respondents wrote to the Appellant on 21 March 2007 informing him that they would institute condemnation proceedings in the Dover and East Kent Magistrates' Court and that if the Appellant wished to contest the seizure as being unlawful then he need take no further action, but if he did not wish to do so, then he should notify the Commissioners immediately so that proceedings would not be started unnecessarily.
6. The Appellant replied to that letter by a letter dated 29 March 2007 informing the Commissioners in terms that "I want only my goods to be returned to me, I don't want Court or anything else", informing them that he was unemployed and had no money to pay the expenses of proceedings.
7. In response, the Commissioners wrote back on 3 April 2007 confirming that condemnation proceedings had been withdrawn at the Appellant's request and that no court hearing would take place.
8. The Appellant replied on 7 April 2007 (the letter states 7 March, but 7 April must have been meant) saying that he did not understand what the Commissioners had said about proceedings being withdrawn at his request and confirming that if the Commissioners did not give the goods back he would like to go to court.
9. In parallel with this correspondence, letters were exchanged regarding the Appellant's request for the restoration of the seized goods. Office Ashton of the Commissioners' post seizure unit wrote to the Appellant on 19 April 2007 informing him that the goods would not be restored.
10. The Appellant replied in an undated letter received by the Commissioners on 14 May 2007 asking for a review of that decision. The decision was reviewed and the Review Officer (Officer McEntee) wrote to the Appellant on 12 June 2007 informing the Appellant of his conclusion that the goods should not be restored to him.
11. The Appellant appealed against Officer McEntee's decision to this Tribunal by a Notice of Appeal dated 13 July 2007.
12. On the appeal being called on for hearing, Mr. Jones, for the Commissioners, took two points, first that the legality of the seizure could not be in issue in the appeal (because that was a matter which could only be considered in condemnation proceedings) but that if matters relating to the legality of the seizure (in particular the Appellant's claim that he was importing the hand-rolling tobacco for his own use) were considered by the Tribunal, then the appeal should be dismissed because the Commissioners had reasonably concluded that the Appellant did not import the hand-rolling tobacco for his own use.
13. We considered, first, whether we should hear argument on the legality of the seizure, in particular the "own use" issue.
14. We had well in mind judicial guidance that generally we ought not to hear such argument, but we decided to do so because we considered that to do so would not be an abuse of our process and that not to do so would cause serious injustice to the Appellant. It was plain that the "own use" issue was central to his argument that the hand-rolling tobacco should be returned to him, or that he should be compensated for its non-return, and that he had not understood the procedural points which had been explained to him, to the effect that this issue was proper to condemnation proceedings and could not normally be considered on a restoration appeal before this Tribunal.
15. We found that the Commissioners had issued to the Appellant Notice 12A which clearly set out the procedural position and that if the Appellant had read and understood Notice 12A he would have been on notice that he could not argue the "own use" point in a restoration appeal. But we also found that the Appellant did not read and understand Notice 12A and indeed that without competent advice he would have been unable to do so.
16. We indicated at the appeal hearing that we did not accept Mr. Jones's submissions that we should not consider the "own use" issue and he immediately went on to put the Commissioners' case that their rejection of the Appellant's claim that he imported the hand-rolling tobacco for his own use was reasonable.
17. We heard oral evidence from the Appellant and from Mr. McEntee, the Review Officer. We also had before us a bundle of documentary evidence, including the notes of the Appellant's interview by a Customs officer in the late evening of 21 February 2007 and early morning of 22 February 2007, which were signed by the Appellant with the words "I agree with the officer" in his handwriting. In evidence the Appellant stated that he did not sign voluntarily, because he was being humiliated by the customs officer and was ill, scared, tired and far away from home. We conclude on the totality of the evidence that the Appellant was not humiliated by the Customs officer and that he did sign the interview notes voluntarily.
18. We find as follows: The Appellant has lived in this country (in Swansea) for 12 years. He is originally from Morocco. He has two brothers who live in Paris. He visits them occasionally. On 21 February 2007 he was returning from a trip to France and Belgium during which he made a purchase of 6 kilograms of hand-rolling tobacco.
19. He was stopped by Customs Officers at the Eastern Docks at Dover at 10:30 p.m., whilst driving a Peugeot car, registration number T538 LEP. He was asked the purpose of his trip and replied "Shopping in De Panne [Belgium] and shopping in France". When asked how long he had been out of the UK, he replied that he had travelled that morning.
20. In evidence the Appellant denied that shopping had been the purpose of the trip and said instead that he was seeing his brother. We find that the Appellant did not go to Paris on 21 February 2007. If he visited his brother, the meeting must have taken place near Calais. We consider it unlikely that he did visit his brother and find that the purpose of the trip was shopping, as the Appellant said at the interview.
21. When the Appellant was asked in the interview, whether he had purchased any tobacco, cigarettes or alcohol, he replied that he had bought 8 packets of [hand-rolling] tobacco. Each packet contains ½ kilogram, of hand-rolling tobacco. When asked where the packets were, he pointed to the boot of his car. When asked for receipts, he did not produce any. When asked: "Is that it, sir?", he replied that it was.
22. The officers then searched the vehicle and found, besides the 4 kilograms which the Appellant had indicated, which were in the boot, 2 further kilograms, 1 kilogram under each of the front seats of the car.
23. It was then explained to the Appellant that he was not under arrest and could leave at any time, and he was asked if there was any medical reason why he could not carry on with the interview. He replied "Of course not". He said he had spent 450 euros on the tobacco.
24. He said that he smoked, but did not give an estimate of how much, saying it depended on his mood. An open pouch of tobacco was looked for in the car, but none was found.
25. He stated at the interview that all the tobacco was for his own use and that he did not intend to supply others. In evidence the Appellant was entirely unclear as to how long the imported hand-rolling tobacco would last him. Eventually he estimated that he smoked two pouches a week. On this basis the imported hand-rolling tobacco would have lasted him 60 weeks.
26. He stated that he was unemployed, with income of £53 a week derived from benefits, and that he had used savings to purchase the tobacco. He mentioned that he had brothers who helped him financially.
27. When asked why he did not tell the Customs officer at first about the 4 packets of tobacco under the front seats, he replied: "I told you to look for yourself, I don't know myself".
28. When asked when was the last time he travelled across the Channel, the Appellant replied that he could not remember and guessed, about 4 months previously, stating that he had a bad memory.
29. The officer noted after the interview was concluded that he was satisfied that the goods had been imported for a commercial purpose for the following reasons: (1) a large quantity of goods had been purchased and the Appellant had been unaware of the quantity purchased; (2) the Appellant had misdeclared the amount of goods imported; (3) there was no open tobacco in the car; (4) the 450 euros declared as the cost of the goods was out of proportion to the Appellant's visible means of £53 a week; and (5) that the Appellant had stated that he had last travelled about 4 months previously, whereas records available to the Officer showed that he had travelled on 17 January 2007, a little over one month previously.
30. The hand-rolling tobacco was seized, but the officer restored the car to the Appellant, having been informed that he had recently had an operation on his back.
31. The Appellant in evidence stated that the interview had lasted for two hours. The interview notes indicate that it lasted for one hour and thirty minutes. He insisted that the officers had been rude to him and had refused to let him use the toilet during the course of the interview. He felt discriminated against because of his foreign appearance.
32. There were two receipts in evidence. They showed purchases of 20 [50 gram pouches] of Drum Original and 100 [50 gram pouches] of Golden Virginia from Inter-Tabac at Adinkerke in Belgium (near De Panne). The receipts showed purchases at the same time, 14:57 on 21 February 2007, and a total amount paid of 575 euros.
33. Mr. McEntee gave evidence as to the basis of his decision (as contained in the review letter dated 12 June 2007) which effectively agreed with the reasons given by the officer on the seizure of the hand-rolling tobacco.
34. We find on the balance of probabilities that the Appellant did not intend to use all of the imported hand-rolling tobacco himself. We consider he imported at least some of it to sell to others.
35. We found the Appellant an unsatisfactory witness and consider that where his oral evidence and the notes of the interview diverged the notes of the interview are to be preferred as indicating what was said.
36. We consider that the Appellant's misleading of the officer as to the quantity of hand-rolling tobacco imported suggests that he thought that the officer would regard the importation of 8 kilograms, rather than 6 kilograms, as suspicious. We consider that he thought that because he did not actually intend to use all 8 kilograms for his own use.
37. We consider that this conclusion is supported by the fact that his actual spend of 575 euros as evidenced by the receipts (not 450 euros as he told the officer at the interview) was far too high to be consistent with his having spent that amount on hand-rolling tobacco for his own use. His financial resources were very meagre and it is incredible that he would spend 575 euros on hand-rolling tobacco for his own consumption, and entirely credible that he would spend that money in the hope of a financial return.
38. We consider that the Appellant's vagueness about the amount of hand-rolling tobacco purchased, and about why he purchased quantitities of two different brands, and the inconsistency of his evidence about recent trips across the Channel with the records available to the Commissioners, all support our conclusion that he was not telling the truth when he told the officer that he intended to smoke all the hand-rolling tobacco which he imported.
39. For these reasons we consider that Mr. McEntee's decision, on behalf of the Commissioners, to confirm the refusal to restore the hand-rolling tobacco (or provide equivalent compensation) to the Appellant was entirely reasonable and we dismiss the appeal.
JOHN WALTERS QC
CHAIRMAN

RELEASE DATE: 30 May 2008

LON/2007/8070