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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 >> Henderson v Customs and Excise [2004] UKVAT(Excise) E00744 (26 May 2004) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00744.html Cite as: [2004] UKVAT(Excise) E744, [2004] UKVAT(Excise) E00744

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E00744

EXCISE DUTIES — non-restoration of seized car — appellant and wife importing 23 kg of hand rolling tobacco and other items — whether refusal to restore reasonable — yes — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

DAVID PETER HENDERSON Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr C P Bishopp (Chairman)

Mr C B H Gill (Member)

Sitting in public in Manchester on 4 May 2004

The appellant appeared in person

Mr Andrew Vinson, of counsel, instructed by the Solicitor for the Customs and Excise, for the respondents

© CROWN COPYRIGHT 2004


 


DECISION
1. In the early hours of 9 August 2001 the appellant, David Henderson, arrived at Dover by cross-Channel ferry from the continent in his car, accompanied by his wife. They were intercepted by Customs officers. We do not know why; as usual, Customs gave us no information. Mr Henderson, who represented himself at the hearing, told us he thought that he and his wife had been singled out by undercover Customs officers, who had approached them while they were waiting to board the ferry in Calais, and he was fortified in that suspicion by the fact that only he and his wife, of all the passengers on the ferry, had been stopped. We make particular mention of the point since Mr Henderson was somewhat aggrieved that he and his wife had been selected for interception although it is not within this tribunal's jurisdiction to deal with matters of that kind, and we are unable to say any more about it.
2. Mr Henderson and his wife were found to have with them 23 kg of hand rolling tobacco and a small quantity of other excise goods. The officers were not satisfied with their explanation of what they intended to do with the hand rolling tobacco and seized it, the other goods and the car; the car was seized as it had been the means of transporting the goods. Mr Henderson asked that the car be restored and that request was refused. The refusal was upheld on review and Mr Henderson appealed to this tribunal which heard his appeal on 28 June 2002. However, before the tribunal's decision was released the Commissioners consented to undertake a further review once the decision in the Court of Appeal in R (Hoverspeed and others) v Commissioners of Customs and Excise [2003] STC 1273 had been released. That further review was carried out by Helen Perkins, who upheld the refusal to restore the car. We heard evidence from Mrs Perkins and from Kieron Villiers, who was one of the officers who intercepted Mr and Mrs Henderson, and from Mr Henderson himself. It emerged – and we think it was uncontroversial – that Mr and Mrs Henderson had travelled down to Dover from their home in Rochdale during the afternoon and early evening of 8 August 2001, had then travelled across the Channel to France from where they drove to Belgium in order to buy the goods they had with them, and that they then returned to Calais in order to take a return ferry to England. They arrived at Dover at about 2 am.
3. In their interviews, Mr and Mrs Henderson are recorded to have said that they had been planning their trip for some time, and that they had decided to travel only a few days before they actually did so. That was taken by the Customs officers, including Mrs Perkins, as an inconsistency in their stories, indicative of an intention to deceive. Mr Henderson told us that he and his wife had indeed been thinking about making such a trip for quite some time, but had made up their minds to travel only a few days before they did so. We are satisfied that this was a truthful explanation which undermines the conclusion that there was an inconsistency, and an intention to deceive, in this regard.
4. Mr Henderson told us that it was the first time he and his wife had travelled to the continent and they were quite apprehensive about the trip. Originally they had intended to buy one box of hand rolling tobacco each and then to do some further shopping, having been led to believe that the shops near the tobacco outlet which they planned to visit were open 24 hours a day. They found this was not the case and instead bought more tobacco – altogether they had three boxes containing 6 kg and one containing 5 kg.
5. Mr Henderson explained that he and his wife both preferred to smoke hand rolled cigarettes. His wife could not roll them for herself, and Mr Henderson therefore prepared cigarettes for each of them, in large batches; he placed the cigarettes he had rolled in old airtight tobacco tins which he thought contained between 80 and 100 cigarettes. He estimated that each tin required 1½ 50g pouches of tobacco. He thought he smoked about 40 cigarettes a day and his wife 30; between them they were smoking around 500 cigarettes a week, approximately eight pouches.
6. One of the factors on which Mrs Perkins focussed was the discrepancy between what Mr Henderson had said when he was stopped at Dover, that he smoked 100 cigarettes a day, and what he said in his letters and before us, that his consumption was only 40 per day. Mr Henderson's explanation was that what he had said at Dover was no more than a wild guess, made at a time when he had not really given the matter very much thought, and it was only rather later that he had realised that he had significantly overestimated his consumption. Mrs Perkins, as her letter written following her review and her evidence showed, thought the discrepancy very significant, and one pointing to a commercial importation; she did not accept that a confirmed heavy smoker would overestimate his consumption by such a large amount.
7. Another relevant factor, in Mrs Perkins' review, was her perception that Mr and Mrs Henderson would have found it difficult to afford to pay for their purchases. It is true that some of the information which was available to her was a little confusing. Having heard Mr Henderson for ourselves and having had the opportunity of considering his and his wife's income for ourselves – we do not think it would be of any benefit for us to set out the details – we are satisfied that they did have the wherewithal to pay for their purchase although we observe nevertheless that Mr Henderson is recorded to have indicated at Dover that he was making mortgage payments whereas he later said that he had finished paying off his mortgage in April 2001, some four months previously.
8. The third factor which Mrs Perkins found significant was that Mr and Mrs Henderson said that they intended to pay a surprise visit to Mrs Henderson's brother in Essex, whom they had not seen for about three years. She found that assertion quite implausible; even allowing a reasonable driving time from Dover to Essex Mr and Mrs Henderson would have arrived well before an hour at which her brother and his family would have welcomed a visit. Mr Henderson told us that they would have stopped en route for a drink and if necessary could have sat in the car reading in order to pass some time.
9. This tribunal has a very limited jurisdiction in cases of this kind. Section 16(4) of the Finance Act 1994 provides that we can allow the appeal only if we are satisfied that Mrs Perkins' decision was one at which she could not reasonably have arrived; it is not sufficient that we might disagree with her, in one or more particulars or generally. Her decision has to be unreasonable if the appeal is to succeed. We have therefore to examine whether she took into account irrelevant factors, failed to take into account relevant factors or has come to a conclusion which cannot be supported on the material available to her.
10. It is in our view impossible to say that Mrs Perkins' decision was unreasonable. Certainly we disagree with her about Mr and Mrs Henderson's ability to pay for their purchases, although Mr Henderson's forgetting that he had paid off his mortgage is difficult to understand and may indicate that the information he has provided is unreliable. We share her view that the amount of tobacco is extremely high, representing (on Mr Henderson's later estimates of his and his wife's consumption) significantly more than a year's supply. Mrs Henderson's indication at Dover that two of the boxes of tobacco were for her use was also difficult to reconcile with what Mr Henderson said to us, namely that he rolled all his wife's cigarettes for her, and also his assertion that his consumption was conspicuously greater than hers. Mrs Henderson too estimated at Dover that she smoked only 20 cigarettes a day, rather than the 30 which Mr Henderson mentioned. We agree with Mrs Perkins that there was an apparent attempt to mislead Customs officers about their respective level of consumption. We share too her doubts about the supposed trip to see Mrs Henderson's brother; although of itself it has nothing to do with an importation of tobacco, it is, we think, suggestive of an intention to mislead Customs officers. We are not as concerned as Mrs Perkins evidently was about the perceived discrepancy in the accounts of the decision to take the trip, but we cannot say that Mrs Perkins' doubts about it were unreasonably held.
11. The value of the car which was seized was put at £5,000 by Mr Henderson. He put forward no corroborative evidence, but his valuation was not challenged. We were told that the value of the duty sought to be evaded was about £3,000. We do not think it can be said that the decision to seize and not to restore the car was disproportionate.
12. The appeal must be dismissed.

COLIN BISHOPP

CHAIRMAN

RELEASE 25/05/2004

MAN/03/8096