E00781
RESTORATION — trip to Spain to buy cigarettes — stopped at Manchester airport — 8,000 cigarettes — purchased for him — refusal to restore cigarettes unreasonable — appeal allowed
MANCHESTER TRIBUNAL CENTRE
DAVID THOMAS BULLOCK Appellant
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: Mr D S Porter (Chairman)
Mrs M Crompton (Member)
Sitting in public in Manchester on 5 July 2004
The Appellant appeared in person
Miss M Mayoh, of counsel, instructed by the Solicitor's Office of HM Customs and Excise, for the Respondents
© CROWN COPYRIGHT 2004
DECISION
- This is an appeal by David Thomas Bullock (the Appellant) against the refusal to restore 8000 cigarettes in a letter dated 10th January 2002. and in the absence of a review the decision was deemed to be confirmed on the 24th February 2002. Appellant claimed to have imported the goods for his own use. The Commissioners claim that the excise goods were held for commercial purposes and were liable to duty in the UK.
The Parties
- Miss Mayoh of counsel appeared for the Commissioners, called Catherine Hallsworth as her witness and produced a bundle of documents for the Tribunal. The Appellant appeared in person.
The Facts
- The Appellant lives at 36 Howard Street, Connahs Quay, North Wales with his Mother (who had died by the time of this hearing). He has been unemployed for ten years and is in receipt of £75.50 per week by way of benefits. He had been involved in an accident at the end of 2000 when he feel over a kerb stone and he had been awarded £1700 by way of compensation.
- On 25th July 2001 he went to Salou, in Spain, and purchased 10,000 cigarettes. On his way through customs in Spain the goods were confiscated, as he was unable to produce any evidence by way of invoice as to the purchase. A letter from the Spanish Customs, which was produced to the Tribunal, advised him that if he went back with the receipts for the 10,000 cigarettes they would return them to him on the payment of a penalty of £380.
- He decided to return to the shop for the invoices and flew out on 24th October 2001. he had with him approximately £200 to £300 on top of the £380 to pay the fine. He went to the shop and was given twelve receipts dated sequentially for the 10,000 cigarettes. He produced the receipts to the Tribunal and explained that he had been given a sequential set of invoices because the shop had advised that they could only sell 325 at a time. All the cigarettes were Lambert and Butler, the brand that he smoked. He produced the receipts to the customs in Spain but by that time they had destroyed the goods and were not able to produce them to him. He also produced the receipts to the Tribunal at the hearing. He subsequently heard from the Spanish customs that if he appealed within 14 days they would re-consider the matter. The letter had taken 3 weeks to reach him and he felt it was futile to go back again.
- Miss Mayoh produced to the Tribunal a summons (with evidence of service on the Appellant) served on the Appellant for him to appear at the Magistrates Court at Crown Square Manchester on the 5th June 2002. The Appellant believed that his request for restoration was being handled through Customs and Excise and had not felt that there was any need for him to attend at the magistrates Court. As a result the goods were condemned as forfeit at the magistrates Court in his absence.
- He decided to replace the cigarettes he had lost and bought 8000 Lambert and Butler with the money that he had taken out to pay the penalty to the Customs in Spain. He was stopped at Manchester and the Customs Officer did not believe his explanations and the cigarettes were seized
- Mrs Catherine Hallsworth carried out the interview at Manchester airport and gave evidence that she had seen the invoices in relation to the earlier purchase and the letter (in Spanish) from the Customs in Spain. She had not pursued the question of the invoice nor had she asked the Appellant for further evidence of the compensation which he had been paid. She was concerned that he had been to Spain on two previous occasions for 7 days in May and July but he had not brought any cigarettes back with him on those occasions, as he had no money with him to make a purchase. At the time of the interview, she was of the opinion that there were no exceptional circumstances, which would prevent her from retaining the goods. If she had had the information made available to the tribunal to-day she might have reconsidered the matter.
- We find as fact the matters set out in paragraphs 3 to 8 above.
The Law
- The Excise Duties (Personal Reliefs) Order 1992 as amended at article 3 states:-
"Subject to the provisions of this Order a community traveller entering the United Kingdom shall be relieved from the payment of any duty of excise on excise goods which he has obtained for his own use in the course of cross-border shopping and which he has transported"
"Own Use" is defined in the Order as:-
"Own Use" includes use as a personal gift provided that if the person making the gift receives in consequence any money or money's worth (including any reimbursements of expenses incurred in connection with obtaining the goods in question) his use shall not be regarded as own use for the purpose of this Order."
. The Commissioners may require the person to satisfy them that the goods are not being held for commercial purposes.
- Paragraph 2 of Article 9 of the Council Directive 92/12/EEC provides the criteria which must be taken into account in establishing whether or not the products are intended for commercial use: -
- The commercial status of the person holding the products, and his reason for holding them
- The place where the products are located or, if appropriate, the mode of transport used
- Any documents relating to the products
- The nature of the products
- The quantity of the products
Summing up
- Miss Mayoh submitted that it is the Respondents widely and publicly stated policy not to restore seized excise goods, save in exceptional circumstances. In relation to the Appellant's grounds of appeal the legality or otherwise of the seizure has been challenged and held to be correct in condemnation proceedings. As a result the commercial nature of the goods has been established and there is not an appealable matter before the Tribunal. The Appellant had failed to put forward any exceptional circumstances. On the evidence it cannot be said that the Respondents' decision was outside the bounds of reasonableness and the case should be dismissed
- The Appellant submitted that the cigarettes had been purchased for his own use and that they should be returned to him.
The Decision
- My colleague and I have considered the facts in the case and have decided that the appeal should be allowed. The Appellant repeated the facts to this Tribunal as he had at the interview. He did not seek to hide his circumstances and actions and appeared to be perfectly frank in what he had to say. We therefore believed the evidence that he gave. The Respondents did not bother to enquire as to the facts with regard to the earlier seizure of the goods by the Spanish Customs, nor did they make any further enquiry with regard to the claim for compensation, which in the circumstances would have provide the appropriate funds for the Appellant to purchase the cigarettes.
- The Appellant did not defend the application for condemnation in the Magistrates and they were condemned as forfeit. The Appellant was therefore deprived of arguing that his goods were for his private use. (see Gora v CEC [2003] EWCA 525). He did not attend that hearing, as he believed the Respondents on their review were dealing with the matter. As a result this does not, however, prevent him from arguing for the purposes of these proceedings that the goods were purchased for his own use in seeking a review of the Commissioners deemed refusal to restore the goods to him. (See para 49 of the judgement of Peter Smith in CEC v Dickinson [2003] EWHC 2358 (Ch)
- This tribunal hereby directs under section 16(4)(b) of the Finance Act 1994:
- That the Commissioners do conduct a further review of the decision to refuse restoration of the goods and serve the same on both the Appellant and the Tribunal within 40 days of the release of this direction
- That the Review be conducted by an officer not previously involved, and shall be on the basis of the finding by the Tribunal that the goods were held for the Appellant's own use and shall consider whether restoration should be made in the form of compensation and if so shall specify the amount of compensation and the basis of the calculation.
- That the Appeal is determined on the above basis
- That if dissatisfied with the Review the Appellant will have a further right of appeal to this Tribunal.
- We award £20 costs to the Appellant, as requested, to cover his travelling expenses.
MR D S PORTER
CHAIRMAN
Release Date: 16 August 2004
MAN/02/8055
