[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	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 >> Watts & Ors v Customs and Excise [2004] UKVAT(Excise) E00743 (26 May 2004) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00743.html Cite as: [2004] UKVAT(Excise) E743, [2004] UKVAT(Excise) E00743

[New search] [Printable RTF version] [Help]

E00743

EXCISE DUTIES — non restoration of goods – conditional restoration of vehicle –reasonableness of the Commissioners' decision – appeal dismissed

MANCHESTER TRIBUNAL CENTRE

RITA MARY WATTS

GORDON KEITH WATTS Appellants

NEVILLE KEITH WATTS

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Lady Mitting (Chairman)

Mrs M P Kostick FCA ATII (Member)

Sitting in public in Birmingham on 26 and 27 April 2004

Mr Neville K Watts appeared for the Appellants

Mr J Puzey of Counsel instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION
1. The decision under appeal is that of the Commissioners, taken on re review and dated 13 January 2003 to refuse all three Appellants restoration of their goods and to offer Mr Neville Watts restoration of his vehicle conditionally upon payment of a fee equivalent to the duty evaded on the goods.
2. The original deemed decision of the Commissioners to refuse restoration of both goods and vehicle had been appealed to the tribunal, the case coming on for hearing before Mr Colin Bishopp on 17 July 2002 and being adjourned part heard. A review then took place on 24 September 2002 when Mr Bishopp directed the Respondents carry out a further review following the decision of the Court of Appeal in R (Hoverspeed Ltd and others) v Customs and Excise Commissioners [2003] STC 1273. The re review took place on 13 January 2003. A further review took place on 24 September 2003 when Mr Bishopp directed the appeals should be treated as appeals against the re review decision and he laid down a timetable for the service of the statement of case and witness statements and directed the appeals should be set down for hearing, allowing two days.
3. When the case came on for hearing before us, despite Mr Neville Watts having been present at the review on the 24 September 2003, the Appellants expressed surprise that the case was not a continuation of the original part heard appeal but was being heard afresh. Mr and Mrs Watts senior expressed dismay that they would have to give evidence again, Mrs Watts commenting that had she known this she would have brought with her, her paper work which was at home. We advised that this would not be a problem as their evidence could be given on the second day, thus giving Mrs Watts the opportunity to bring her notes with her. The case then proceeded with no objection from any of the Appellants. Later in the day, Mr Watts senior said that he would not be giving evidence and at the end of the first day's proceedings he announced that he did not intend attending the following day. We advised against this decision but when the case came on for hearing on the second day, neither Mr nor Mrs Watts senior were present. Mr Neville Watts advised us that his father was tired after the previous day's proceedings and was resting at home and his wife was at home to look after him. No request for an adjournment was made and Mr Watts informed us that he would continue on the second day and would represent all three of them.
4. We heard oral evidence from Mr Neville Watts and on behalf of the Commissioners from Mr Andrew Whybrow and Mr Michael Abbbott. To avoid confusion, we, throughout this decision, refer to Mr Neville Watts as "Mr Watts" and to his parents as "Mr Watts senior" and "Mrs Watts."
5. The Appellants had been intercepted on the 29 March 2001 at Coquelles. They were travelling in a Ford Galaxy registration V609KEG owned and driven by Mr Watts. The intercepting officer was Mr Whybrow. In answer to preliminary questions, Mr Watts declared purchases of 50 cases of beer, 200 litres of wine, 60 pouches of hand rolling tobacco, 12 cartons of cigarettes and 12 boxes of cigars. Mr Watts handed Mr Whybrow receipts for the goods which matched the declaration. He told Mr Whybrow that he had been to France approximately fifteen times in the last twelve months and had been stopped in November when they were found to have had too much tobacco and were given a Public Notice 1. The last time he had travelled to France was in January but had travelled to Spain on holiday after that. The following exchange then took place.

"Q Does anyone else have access to this vehicle?

A No

Q Have you travelled to France in any other vehicle?

A No"

6. Mr Whybrow asked Mr Watts how much tobacco he had had when he travelled in November to which the answer was " about 80 pouches"
7. Mr Whybrow then carried out some checks and found that in fact Mr Watts had travelled to France several times between September 2000 and January 2001 in another Ford Galaxy registration P541PNV. He also discovered that on 9 November he had been stopped with 18.5 kilograms of tobacco and on 24 November, with 50 cases of beer, 24 litres of spirits and 3200 cigarettes. He had been issued with a Public Notice 1 on each occasion. Mr Whybrow asked why Mr Watts had not declared his earlier vehicle to which he replied "I thought you meant, had I travelled in any other vehicle whilst I owned this one. It was a bit of a loaded question." He told Mr Whybrow that the purpose of the journeys were for shopping. He went on to say that the 18.5 kilograms of tobacco, purchased in November had all gone and that of that batch he had given 20 pouches to his father in law for Christmas.
8. Mr Whybrow did not accept that the purchases were for personal consumption and asked all three travellers to stay for interview which they did. It was Mr Whybrow who interviewed Mr Watts.
9. In his interview, Mr Watts said that the goods purchased belonged to all three of them and had cost approximately £900 between them. He smoked between two and two and a half packs of rollups a week and his wife smoked 200 cigarettes a week. It was not his intention to supply others and the goods were all for his own personal consumption. He ran a vehicle rental business with an income of approximately £20000 per year before tax. He had savings of £2000 and shares worth about £1200 and a further £1000 in capital. That day's trip had been financed out of his savings. He told Mr Whybrow about the Public Notice 1 being issued on 9 November 2000 and that approximately 7 years previously he had had some goods seized on his return from Tenerife. That contravention had been due to a misapprehension that Spain was an E C country. He had made between twelve and fifteen trips abroad in the previous twelve months. He had been to Spain several times. He purchased excise goods of varying amounts on every trip. Mr Whybrow's enquiries had revealed that Mr Watts had travelled to France on five occasions in September 2000 and asked Mr Watts to explain those trips. Mr Watts replied that he had been over for a meal with his parents and to have a good time. Mr Whybrow pointed out that on each journey they only spent a couple of hours in France and Mr Watts commented that when they were in France for two hours only they would go and look round the Cite' Europe, have a meal, buy a pack or two of cigarettes and return home, the amount being saved paying for the day out. Mr Watts also told Mr Whybrow that he had part exchanged his original Ford Galaxy V541PNV on 3 February 2001 and purchased the replacement in which they were then travelling.
10. Mrs Rita Watts said in interview that the goods in the vehicle belonged to all of them, her share being 4 packs of cigarettes, 20 pouches of tobacco, 10 cases of Stella, 6 x 10 litre wine boxes and approximately 5 cases of bottled wine. Her son had paid cash for the goods. She smoked 30 to 40 cigarettes a day but only very occasionally smoked hand rolling tobacco if her cigarettes had run out. She explained that she would smoke both hers and her husband's share of the cigarettes but he would smoke both shares of tobacco. Her husband smoked two to three pouches per week. She estimated that her cigarettes would last between two and three months. She and her husband had their ruby wedding party coming up. She and her husband were retired and they had an income of £100 per week from investments, £80 per week incapacity benefit and £60 per month pension. They had no mortgage on their home. Mrs Watts was asked when she had last travelled abroad to which she replied "January." She was then asked how many times in the last twelve months she had made this type of journey to which she said that they had been over some ten to twelve times. They had last purchased cigarettes and tobacco in January and had purchased much the same quantities as today. They would purchase tobacco approximately every two months and on other occasions they would buy soap powder and Christmas gifts. They usually travelled with their son although they sometimes travelled alone. She was asked again when her most recent trip had been and she, on this occasion, answered that it was late January or early February. She was then asked if she had travelled once this year on La Shuttle, to which she replied yes. Mrs Watts also volunteered that about once a month they travelled over on the Sea Cat, the last trip on the Sea Cat being some three weeks previously when they bought 800 cigarettes but no tobacco.
11. Mr Watts senior said in interview that he had last travelled three or four weeks previously when he and his wife went to the City Europe. He smoked rolling tobacco mainly Golden Virginia but occasionally Old Holbourn. He smoked a pack every two to three days. He also stated, as had his wife, that he would smoke his and his wife's share of the tobacco, forty pouches, and she would smoke his and her share of the cigarettes, 1600. The beer would be split between himself and his son and of the wine ten cases of white and nine cases of red belonged to him. They spent between £300 and £400 on this trip. The previous year they had travelled quite a few times, shopping and having a day out and this year he had been over on one, two or maybe three occasions. He also said that one of their trips that year had been on the Sea Cat. The tobacco purchase in November had been Golden Virginia; some of it being used as Christmas presents and some as a "thank you" to people who had worked in the garden and done odd jobs for him. He had given away approximately twenty five pouches at Christmas and he also tried to take a couple of hundred cigarettes a week to his elderly parents. He estimated that he would spend an average of £250 per trip and had made about a dozen trips in the previous year. He always bought excise goods, always tobacco except on the Sea Cat when it was too expensive. The beer would be consumed at their wedding anniversary party. The last time he and his wife had travelled was some three or four weeks ago. He was specifically asked where they normally ate when they travelled and whether they ever ate in France. He replied that he had never eaten in France and they normally stopped at a motorway service station.
12. At the conclusion of the interviews, Mr Whybrow read all three interviews and he also had before him travel records for both Ford Galaxy vehicles. Given all the information in his possession he did not believe that the importation was for personal use and he seized both the vehicle and the goods. The reasons given for seizure were the discrepancies in the stories of the three travellers; they were regular travellers; Mr Watts senior used tobacco for payment for people doing jobs around the house and garden; Mr and Mrs Watts senior were retired and had yet spent over £2000 in journeys to France the previous year; the discrepancies in initial questioning of Mr Watts over the travelling details in his vehicles and finally that the travellers should have had enough of their November purchase of tobacco left not to need to make this purchase.
13. An issue arose over the goods actually carried and seized. Mr Whybrow checked that the receipts handed to him by Mr Watts matched his declaration and, having no reason to believe that this was anything other than an accurate declaration, he completed the seizure information sheet from the receipts. This included "200 litres wine." Mr Whybrow carried out no physical check of the goods and once he had completed his paperwork and attended to the arrangements for repatriation he passed the key of the vehicle to Mr Michael Abbott. Mr Abbott checked the contents of the vehicle and found that the goods matched those declared except for the wine of which he found 20 x 10 litre boxes of still wine and 20 boxes containing 6 x 1 litre bottles (120 litres). The amount of wine found in the vehicle was therefore three hundred and twenty litres and not the two hundred litres declared. Mr Abbott completed a yellow sheet listing the items seized which he then passed back to Mr Whybrow. Mr Whybrow from this sheet updated the computer record of the goods seized and realised that his original seizure information sheet had under recorded what had been found in the vehicle. He should at that stage have completed a corrected seizure information sheet and sent a copy to Mr Watts. Unfortunately he did not which he admitted was an error on his part. He also accepted that his senior officer should have picked up the error but had not. It was well over twelve months later that Mr Watts learnt for the first time of the additional wine found in his vehicle. By the time he came to query this with Customs, Customs had lost the receipts which Mr Watts had handed to Mr Whybrow.
14. By undated letter Mr Watts wrote to Customs on behalf of all three of them requesting the restoration of the vehicle and goods. In his letter he explained that the goods were to be split between the three of them and thus were within the guidelines and were in any event for their own use. Mr Watts, in his letter, explained the frequency of travel by having free time on his hands whilst preparing to start up his business later that year. His parents were retired and they therefore decided to take days out together both in this country and in France. His parents would do their weekly shop whilst there and by sharing the travel costs it worked out cheaper than shopping in the supermarkets in this country. He denied the implication that on each occasion that they travelled they carried an excess amount of excise goods. In fact, wrote Mr Watts, they had been stopped on nearly every occasion they had travelled and only twice had been found to be carrying excess goods, those two occasions being in November 2000 when they were given on each occasion, a Public Notice 1. In his letter he also denied that they had travelled five times in September, saying that Eurotunnel had confirmed that two of those trips had been cancelled. Mr Watts went on to explain the trips he had made in November 2000. The first of the two trips was on the 9 November when the Public Notice was given because of the excess amount of tobacco. They had purchased this much as they did not intend buying any more for probably up to six months and didn't intend travelling again as the weather was getting bad and the Tunnel busier as Christmas approached. Mr Watts said that he had told the officer that they had not had room in the vehicle for the alcohol which they had wished to purchase for Christmas and that they would therefore be coming back once more in a fort nights time. The officer had said that this was perfectly in order. The next occasion had therefore been on 24 November when beer, wine and spirits were purchased and a small quantity of cigarettes for Mr Watts' wife. Again they were issued with a Public Notice. The next trip had been on the 7 January 2001 to return a broken play station and to buy some groceries, the only excise goods purchased being one pack of cigarettes. As no excise goods had therefore been purchased between 24 November 2000 and 29 March 2001 apart from one pack of two hundred cigarettes, it could not be said that they were frequent travellers or frequent purchasers of excise goods. Mr Watts concluded by saying that the seizure of his vehicle had taken away his livelihood as it was his main vehicle for which he had had a full orderbook but he had now had to suspend the business. All his capital had been invested in the car and he did not have the funds to replace it.
15. By letter dated 16 July 2001, restoration was refused. Each Appellant then wrote in separately by letter dated 23 July 2001 requesting a review of that decision. Mr and Mrs Watts senior both stressed that their shares of the goods purchased were within the legal guidelines. Mr Watts also stressed that they were within the guidelines. He listed in his letter the individual amounts of goods which they would be taking. He also stated in his letter, "We are also recorded as having 200 litres of wine, which again split between the three of us was well within our guidelines…" He stated that travel within the EU was unrestricted and they were perfectly entitled to bring back goods within the limits for their own personal consumption. The reason why he had not declared previous trips in another vehicle was that he had misunderstood the nature of the question in that he thought the officer was asking if he had been across in any other vehicles which he had owned at the same time as this one to which he had answered truthfully.
16. The decision was not reviewed within the statutory time limit and the original refusal to restore was therefore deemed upheld.
17. When Mr Crouch came to carry out his re review, he had before him the seizure information, the interviews with all three travellers, the correspondence from the Appellants and records of travel of both Mr Watts' vehicle and that of his parents.
18. The travel records showed that Mr and Mrs Watts senior had travelled through the Channel Tunnel in their vehicle on 17 February, 26 February and 18 March 2001. Customs had also obtained from Eurotunnel a list of transactions carried out by Mr Watts using his Points Plus card. These transactions included not only travel details but also recorded the times that the card had been used for shopping. This schedule revealed that Mr Watts had made day trips through the Tunnel (excluding one cancelled trip on 27 March 2001) on 27 occasions between 16 May 2000 and 29 March 2001. Of these five were shown to be taken during September 2000 and five during November 2000. The schedule also revealed that Mr and Mrs Watts senior used the card on their crossings on the 17 February and 26 February at the BAA World Shopping, spending 2550 F.F., and 2416 F.F. respectively. The schedule also showed the two crossings made by Mr Watts on his journey out to Spain on holiday on 28 February and his return on 12 March. On 12 March it is shown that 1080 F.F. was spent in BAA World Shopping at Coquelles. In support of the schedule, Mr Crouch also had before him a record taken from the number plate readers at Coquelles and Cheriton covering the period September 2000 to March 2001. In addition he had an analysis of computerised booking records through Eurotunnel covering the period 3 October 2000 to 29 March 2001. A record from Stena Line also recorded that Mr Watts had made a ferry crossing on 9 January 2001, the day after the Eurotunnel record showed a Tunnel crossing and 2436 F.F. being spent at BAA World Shopping.
19. Mr Crouch wrote two letters in his re review, both dated 13 January 2003, one to Mr and Mrs Watts senior and one to Mr Watts. In both letters he outlined the applicable legislation and the Commissioners' policy on restoration and in both he refused restoration of the goods. In his letter to Mr and Mrs Watts senior he justified his decision on the grounds of the frequency of travel and the closeness together of some of those journeys. They had taken four journeys in the six week period ending 29 March. The bulk of journeys they had made in the past had been with their son who had made seventeen trips in a six month period, fourteen of those occurring within three months of each other. He highlighted inconsistencies in Mr Watts senior's interview and that he stated on one hand that on his last trip he had purchased excise goods but no cigarettes or tobacco whereas in response to another question he maintained that he always purchased tobacco. Mrs Watts had told the officer that some of the journeys were for shopping and for lunch, a statement supported by Mr Watts in his interview, whereas Mr Watts senior told the officer that he never ate a meal in France, always stopping on the motorway in England. Again on none of the three recorded occasions on which the travellers had been stopped had they had any goods other than excise goods in the car whereas all the travellers maintained that their trips were to buy soap powder and gifts and indeed to do their weekly shop. Mr Crouch also highlighted discrepancies in the rates of consumption and actual consumption cited by Mr and Mrs Watts senior and that Mr Watts gave excise goods away in return for favours done.
20. In his letter to Mr Watts, again Mr Crouch relied on the frequency of travel and the fact that Mr Watts had confirmed in interview that excise goods would be purchased on every occasion and there was no evidence of any other shopping of a domestic nature. He pointed out that at Mr Watts' given rate of consumption, his share of the importation on 9 November 2000 would have lasted considerably beyond 29 March, rendering any further purchase of tobacco then unnecessary. He calculated from the records that the vehicle had travelled seventeen times in a six month period and in addition his father had in between times travelled three times in his own vehicle. As in his letter to Mr and Mrs Watts senior, he highlighted the discrepancy in evidence as to whether or not they ate in France.
21. Although he refused restoration of the goods, in line with the Commissioners' restated policy on vehicles, he did offer Mr Watts conditional restoration of the vehicle, the factors taken into account being that this was the first time excise goods had been seized, the quantity involved and the value of the vehicle at the time of seizure. He therefore offered restoration on payment of a sum equivalent to the duty on the goods of £1457.
22. In his evidence in chief, Mr Watts described the trip of the 29 March as being a normal shopping trip for personal goods for their own use and he reiterated that the frequency of travel was due to him having free time to spend days out with his parents. In cross examination he was questioned at length by Mr Puzey on the wine importation. He could not recollect whether his purchase was in boxes or bottles but denied that he had purchased more than the two hundred litres declared. He explained that having been given a Public Notice on two occasions and being well aware of the Regulations, he and his parents were rigorous in adhering to the limits. He maintained that he had only a few pouches of the November importation left and put down the discrepancy in consumption rates to the fact that some days he smoked more than others. Of the September trips, as in his correspondence, he maintained that some of the trips were cancelled. He categorically denied that he had made a journey on the 16 November saying that he must have lent his card to someone else and the recorded journey was theirs and not his. He did however confirm that they would not have used his vehicle for the crossing. The ferry crossing on 9 January was purely and simply to compare prices. He denied making five trips in November 2000.
23. It was Mr Watts' contention that the seizure of his vehicle had caused him excessive hardship in that it had destroyed his business. In support of this he produced a set of accounts for the period 4 October 2000 to 29 March 2001. These accounts confirmed that his Ford Galaxy vehicle had been rented out more or less on a weekly basis up until 29 March 2001 but there was no evidence whatsoever of cancelled orders beyond then.
24. In relation to the importation of wine, it was Mr Watts' contention that as their vehicle was partially unloaded by Mr Whybrow alongside another vehicle which was also unloaded, some goods belonging to the other vehicle had been intermingled with Mr Watts's and had been inadvertently replaced in Mr Watts' car. The cross examination of Mr Whybrow and Mr Abbott was in the main concerned with this aspect. Mr Whybrow had no recollection of having unloaded any part of the vehicle. Mr Abbott confirmed that he would have unloaded the vehicle although he did not remember it specifically. He denied however that he had ever tallied a vehicle whilst another vehicle was present in the garage. There was therefore no possibility that goods could have been mixed up between two vehicles. His tally of the goods had been confirmed by the P and O contractors when they filled out the job sheet when they loaded the goods onto the ship. He was quite certain that the vehicle was fully loaded when he did his tally because his notebook read " received vehicle which contained …" If part of the load had been on the ground, the note would have been differently written.
25. It was Mr Puzey's contention that the Appellants had purchased three hundred and twenty litres of wine but had wilfully under declared their purchase both verbally and by concealing receipt(s) for one hundred and twenty litres. He believed it was the twenty cases of bottled wine which had not been declared and he relied on Mrs Watts' statement in interview that both bottles and boxes had been purchased. Mr Watts' answer to this was that, whilst implicitly accepting that three hundred and twenty litres were found in the vehicle by Mr Abbott, one hundred and twenty litres were not his but must have been placed in the vehicle by accident when it was reloaded by Mr Whybrow.
26. There is in our view quite simply insufficient evidence to make a finding of wilful under declaration and concealment. Mr Abbott maintained that there could have been no other vehicle in the garage when he carried out his tally but that is not to say that there hadn't been a vehicle there earlier on and that both vehicles had been partially unloaded. Through no fault whatsoever of Mr Watts, this point is being argued for the first time some three years after the seizure when, quite understandably, Mr Whybrow had no recollection whatsoever of whether he carried out a partial unloading of the vehicle or whether there was any other vehicle alongside. Mr Whybrow, by his own admission, should have immediately prepared an amended seizure information notice and notified the amendment to Mr Watts. This should have been done within days of the seizure when Mr Watts would have immediately been able to take the matter up. As it was, the first Mr Watts knew of the Commissioners' tally of three hundred and twenty litres was when he received an out of time review in July 2002, some sixteen months after the seizure. Mr Watts sought production of the receipts but these had been lost by the Commissioners. These may or may not have helped his case but they are a vital piece of the jigsaw. For all these reasons we cannot find that the Appellants imported any more than the two hundred litres declared and we deal with the case on the basis that the amounts of goods imported were as stated on the seizure information notice.
27. Mr Watts, who in effect gave evidence on behalf of himself and his parents and expressly made his closing submission on behalf of all three of them, contended that since the second Public Notice, he and his parents had not travelled to France very often and each time that they had, they had been careful to keep within the guidelines and he pointed out that the Commissioners had produced no evidence that any of the goods were for resale. It was his submission that all goods were for their own personal use.
28. One of the major points in issue between the parties was precisely how many trips the Appellants had in fact made. This is important not only in its own right but it goes to the heart of the credibility of Mr Watts and his parents. The Commissioners' documentary evidence taken from booking records and number plate readers reveals nineteen return trips from beginning September 2000 to end of March 2001. These trips were made by the three Appellants either separately or in the main together. They do not include a booked trip on 27 March which Mr Watts told us had been cancelled but they do include the return trip for his Spanish holiday in February/March. We believe it reasonable to include the Spanish holiday crossing because the Points Plus schedule does show 1080 FF being spent at BAA world shopping on their return trip. The Commissioners did not have access to the Hoverspeed Seacat records whereas Mrs Watts said in her interview that they had in fact travelled on the Seacat some three weeks before the seizure and that they travelled by Seacat approximately once a month so on this basis Mr and Mrs Watts senior made a further half a dozen trips during the six month period. This number of trips is at complete variance with what was declared by the three Appellants in interview. Mrs Watts, in her interview, said that they had travelled once on the Shuttle that year and had last travelled abroad in January. The number plate reader had quite clearly recorded Mr and Mrs Watts senior as having travelled three times in February and March before the seizure and of course there is the Seacat trip as well. Mr Watts senior answered that he and his wife had last travelled " three or four weeks ago." In fact their last trip had been recorded as some eleven days previously. Mr Watts in his interview maintained that in the previous twelve months he had only travelled some twelve to fifteen times, a clear understatement. Mr Watts both in his evidence and in correspondence maintained that of the five recorded September trips two had been cancelled and that he had had confirmation of this fact from Eurotunnel although no evidence was produced to us. In fact, quite apart from the booking records, the number plate readers show Mr Watts' vehicle having made the five recorded journeys. Equally there is the trip of 16 November. Mr Watts, in his letter to the Commissioners, had said that he did not travel between the two occasions in November when he was given a Public Notice. In his oral evidence to us, he maintained that the trip on 16 November must have been booked by someone using his card. However again the number plate reader records Mr Watts' vehicle making that trip.
29. From the evidence before us therefore it was abundantly clear that the Appellants had made a large number of trips abroad and certainly far more than they had owned up to. Mr Watts pointed out that the number plate readers were prone to error and indeed the printout before us is not complete because it does not always record the outward and return journey. It was pointed out by Mr Puzey that if the reader did not get a clear picture then it would not be recorded. However, the one thing the reader cannot do is create journeys where none existed so it must be indisputable that where the reader did record a crossing that crossing actually took place. We also note that the number plate reader must have been correct in respect of Mr Watts' vehicle because each entry cross refers to the bookings record.
30. Coupled with the number of journeys made is their short duration – no more than two or three hours in a number of cases. This was explained by Mr Watts in interview as taking his parents out for a day and for a meal, just for a good time. This was however directly contradicted by Mr Watts senior who said they never ate in France. Mr Watts complained that this point was nit picking. That, however, depends on its context. When it is given as the reason for frequent trips of short duration it assumes a degree of importance and both we and the Commissioners must test the veracity of the statement. Equally the timing of at least two of the outward journeys are not consistent with going out for the day. The trip of 28 February is recorded as leaving at 16.44 that of the 18 September 2000, at 22.05. In neither case is the return trip recorded.
31. The three Appellants live in Northamptonshire, a long way from the Tunnel. It does not appear very likely that they would make the very long journey involved, at such strange times, for such a short duration of stay, purely to have a day out.
32. Other inconsistencies relate to the goods actually purchased. Mr Watts senior maintained that he smoked Golden Virginia or occasionally Old Holbourne. The tobacco purchased was Drum. Given that both he and his wife said in interview that Mr Watts took both their shares of the tobacco purchased in November and given Mr Watts' rate of consumption, he should have had at least 4 kilograms still left of that consignment at the end of March. This takes no account of anything that he might have purchased between 9 November and 29 March. Again, Mrs Watts said tobacco was purchased every couple of months. Mr Watts senior said it was purchased every trip. Given the number of trips made this was a major discrepancy
33. We were not assisted by hearing no evidence from Mr & Mrs Watts Senior and we did not find credible the evidence we did hear from Mr Watts. For all the reasons given, we reject the Appellants' case and we share the Commissioners' view that this was a commercial importation. Mr Watts repeatedly pointed out that they had purchased deliberately within the guidelines but these guidelines are evidential only. Also, however little one purchases and imports, if the purchase is for commercial use then it is liable to duty.
34. Our jurisdiction is limited to considering the reasonableness of Mr |Crouch's decision. We have to consider whether the decision he reached was one which no reasonable panel of Commissioners could have come to; whether he took into account some irrelevant matter or failed to take into account something which he should have done. There are two matters, both in our view minor, to which we would take exception. First, he considered the goods given away by Mr Watts senior to people who helped in his house and garden to be commercial. There is no evidence that this formed part of any contractual arrangement the amounts were small, and we believe that they were precisely what Mr Watts said they were, namely gifts and would fall within the definition of own use. Secondly Mr Crouch had believed that Mr Watts had travelled on 10 November the day after his first Public Notice. In fact although a booking for the 10 November was made, this booking was altered to the 9 November and there were not therefore journeys on the two consecutive days. Neither of these matters is of sufficient significance to render the decision unreasonable.
35. For all the reasons given and given our findings of fact, we believe that Mr Crouch's decision to refuse restoration of the goods to all three of the Appellants and to refuse unconditional restoration of the vehicle to Mr Watts was a reasonable decision. Mr Watts produced no evidence of lost future bookings in support of his contention of hardship and nothing we have heard convinces us that Mr Crouch's decision was anything but reasonable and proportionate.
36. The appeal of all three Appellants is therefore dismissed. There will however need to be recalculation of the fee payable for restoration of the vehicle to take into account our view of the amount of wine imported. The duty should be calculated on the basis of two hundred litres and not three hundred and twenty.
37. Mr Puzey made no application for costs and no order is made.

LADY MITTING

CHAIRMAN

RELEASE : 26/05/2004

MAN/01/8229/8230/8232