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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 >> Oliver v Customs and Excise [2005] UKVAT(Excise) E00848 (22 February 2005) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2005/E00848.html Cite as: [2005] UKVAT(Excise) E00848, [2005] UKVAT(Excise) E848

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E00848

EXCISE DUTY — forfeiture of vehicle — importation of 22.5 kg hand rolling tobacco by driver and two passengers — whether decision not to restore vehicle was reasonable — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

DAVID GEORGE OLIVER Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Ian E Vellins (Chairman)

Marjorie P Kostick BA FCA CTA

Sitting in public in York on 27 January 2005

Mr Johnson Kirk, of counsel, for the Appellant

Miss Emma Piasecki of counsel instructed by the Solicitor for HM Customs and Excise for the Respondents

© CROWN COPYRIGHT 2005


 


DECISION
1. This is an appeal by Mr David George Oliver, who lives in Bennington, Lincolnshire, against a decision on review of the Commissioners of Customs and Excise by letter dated 29 April 2004 refusing to restore a Rover car and excise goods to him, the vehicle and goods having been seized by the Commissioners on 19 June 2001, when the Appellant and his two passengers were returning to the United Kingdom by ferry from Calais to Dover with 22.5 kg of hand rolling tobacco in the vehicle.

2. At the hearing of this appeal in York on 27 January 2005, the Appellant was represented by his counsel, Mr Johnson Kirk, and the Respondents were represented by Miss Emma Piasecki, counsel.

3. Oral evidence was given at the hearing of this appeal by the Appellant and by Mr Graham Crouch, a Review Officer of the Commissioners.

4. On the basis of the evidence presented to us, consisting of the Commissioners' bundle of documents and the oral evidence of the two witnesses, we find the following facts to have been established.

   The Facts

5. On 19 June 2001, officers of the Commissioners were on duty at Dover Eastern Docks. They intercepted a Rover 418 vehicle, registration number M236 M0E which was driven by the Appellant, who was the owner of the vehicle, with two passengers in the vehicle, Mr Trevor Taylor and Mrs Terese Blanche Danks. The Appellant and his passengers were returning in the vehicle from Calais to Dover. The vehicle was found to contain 22.5 kg of hand rolling tobacco, two boxes of beer, six boxes of wine, and one bottle of whisky. Each of the occupants of the vehicle claimed that 7.5 kg of the tobacco belonged to each of them. The three travellers were then interviewed by officers of the Commissioners.

6. During his interview, the Appellant told the officer that each of the passengers had bought one box of tobacco each. The Appellant had also bought three half cases of wine. The tobacco had cost him £280 in Belgium. He told the officer that he smoked 40 cigarettes a day and that a pouch of tobacco would last him about six days to a fortnight. He expected the box to last him for half a year, and it was all for himself. He stated that he rolled his own tobacco but did not have any rolling machinery with him and no other tobacco. He had last purchased 60 pouches abroad at Christmas 1999. He stated that he was a semi-retired taxi driver and that his weekly income was about £150 and that his monthly income was about £450. He had previously travelled to France six weeks before the seizure when he had not brought back tobacco with him. He had travelled abroad half a dozen times in the 12 months before the seizure. He told the officer that Mr Taylor was his friend and that Mrs Danks was a relative. The Appellant then told the officer with regard to how long a pouch would last him, that his previous answer had referred in fact to a packet rather than a pouch and that a packet consisted of 10 pouches. The Appellant made that change, after the officer had informed him that on his previous estimate of a pouch every ten days, the tobacco would have lasted just over four years.

7. At her interview, Mrs Danks told the interviewing officer that she smoked two to two and a half pouches of tobacco a week and expected her goods to last six to eight months. The officer considered that at this rate of consumption, the goods would last over 15 months. She told the officer that her tobacco had cost £280. 12 of the bottles of wine belonged to her. She claimed that the Appellant had paid for her tobacco but that she would repay the Appellant from savings that she had inherited from her mother. She told the officer that neither herself or her husband worked. Their income comprised of incapacity benefit, disability living allowance, and child benefit for three children.

8. Mr Taylor told an interviewing officer that he believed that he had 100 pouches of tobacco, and that his goods in the vehicle consisted of a full box of tobacco and a crate of beer. In fact, his box contained 150 pouches. Mr Taylor told the officer that he believed that his tobacco had cost £180. In fact, a box of tobacco would have cost £280 - £300. He stated that tobacco in the United Kingdom would cost him £6 - £7 per pouch, whereas in fact tobacco costs approximately £8.50 per pouch in the United Kingdom. He told the officer that he had last been to Belgium in February 2001 and bought cigarettes but no tobacco, and that he had never previously bought tobacco in Belgium. He was not carrying a lighter, smoking materials or any cigarettes.

9. The Commissioners' guidelines were at the time 1 kg of tobacco in respect of each traveller. In view of the quantity of tobacco, which was considerably over the guidelines, and the answers given by the three travellers, the officers were not satisfied that the goods had been imported for their own use, and considered that the tobacco was being imported or held for a commercial purpose. As a consequence, the goods were liable to forfeiture pursuant to section 139 of the Customs and Excise Management Act 1979. The vehicle also became liable for forfeiture under Section 141(1) of the Customs and Excise Management Act 1979, and the appropriate seizing and forfeiture documentation was served by the Commissioners on the Appellant and his passengers.

10. The Appellant wrote to the Commissioners on 19 June 2001 requesting restoration of his excise goods and vehicle. He confirmed that his own goods consisted of 7.5 kg of hand rolling tobacco and a bottle of whisky and four half boxes of wine. He stated that the vehicle was a Hackney Carriage Taxi which was his means of livelihood.

11. An officer of the Commissioners considered all the factors in the case and refused restoration of the vehicle and goods to the Appellant. The officer pointed out that the excise goods were in excess of the guidelines and that there were inconsistencies in the stated consumption rates of the Appellant. The officer considered that there were no exceptional circumstances which would justify a departure from the Commissioners' policy.

12. On 20 August 2001, the Appellant's solicitors wrote to the Commissioners requesting a review of the decision not to restore. They stated that when the Appellant had boarded the ferry, he had been given an identification tag,which indicated that there were no limits and that he could purchase as much as he liked for personal consumption. They pointed out that his beer, wine and whisky were within the guidelines. They pointed out that the tobacco was to be smoked by the Appellant personally and that the vehicle was the Appellant's taxi which was the source of his livelihood.

13. On 27 September 2001, a review officer wrote to the Appellant's solicitors notifying them that he did not consider that there were any exceptional circumstances to justify restoration of the goods to the Appellant or his passengers. The officer reviewed the notes of the interviewing officers, and the correspondence. The review officer concluded that the Appellant's claimed amount of tobacco was 7.5 times the guideline quantity, and that his stated usage of tobacco was not credible. Mr Taylor's claimed tobacco was 7.5 times the guideline quantity and Mr Taylor did not appear to know what he had bought and had carried no smoking materials with him. Mrs Danks' claimed tobacco was 7.5 times the guideline quantity and her account of her income and expenditure in relation to the expenditure of the tobacco was not realistic or credible. The Commissioners had considered that all three passengers had held tobacco for a commercial purpose, that the wine and beer had been packed with the tobacco and that the Appellant's vehicle had been used for transporting goods liable to forfeiture.

14. The seizure of the goods, the decision not to restore and the original review decision of September 2001 had been made before the cases of R (Hoverspeed Ltd) v Customs and Excise Commissioners [2002] 3 WLR 1219 and Lindsay v Customs and Excise Commissioners [2002] 1 WLR 1766.

15. The Appellant appealed the original review decision and the hearing of that appeal took place at York on 24 March 2004. At the hearing of that appeal, it was agreed by the parties that it would be appropriate for the appeal to be allowed by consent and for the Commissioners to be directed to carry out a further review in the light of the Hoverspeed and Lindsay decisions. A decision was made by the tribunal to that effect.

16. In accordance with the direction of the tribunal of 24 March 2004, the Commissioners conducted a further review which was carried out by a review officer, Mr Graham Crouch, who communicated that review decision to the Appellant on 29 April 2004. In that further review, Mr Crouch considered the background and the applicable legislation, and the restoration policy of the Commissioners, and the effect of the Hoverspeed and Lindsay decisions. Mr Crouch considered the documentation. He considered that the tobacco had been held by the passengers for commercial purposes and was not being imported for their own use. The Appellant had paid for far more than the 7.5 kg of tobacco that he had claimed were his. Mrs Danks was not paying for any of the excise goods at all and was to pay the Appellant for her tobacco on their return to the United Kingdom. Mr Taylor had not known how much his tobacco had cost and thought that he had paid only £180 towards it. Both Mr Taylor and the Appellant had maintained that they were habitual smokers of hand rolling tobacco but they had no cigarettes, tobacco or smoking paraphernalia on their persons. The Appellant had stated that he had previously travelled six weeks beforehand and had purchased no tobacco, this despite that his previous stock would have been consumed by March 2001 at the latest. Mr Taylor had also stated that he had previously travelled in February 2001 and had not purchased any tobacco. Mr Crouch was of the opinion that this was a commercial enterprise by the Appellant to import all of the excise goods.

17. Mr Crouch concluded that there was nothing to show that the alcohol was being imported for a commercial purpose. Mr Crouch, however, considered that it was fair and proportionate not to restore the vehicle to the Appellant. He bore in mind that the revenue on all the tobacco was £2,178.23, and the value of the vehicle would have been less than that. He took into account in assessing whether there was exceptional hardship caused to the Appellant by the seizure of the vehicle, that the Appellant was a part-time taxi driver, who had purchased another vehicle in January 2002. Mr Crouch concluded accordingly that the seized 22.5 kg of tobacco and vehicle should not be restored to the Appellant and his passengers, but Mr Crouch was prepared to overturn the contested decision not to restore the alcohol. Mr Crouch notified that decision to the solicitors for the Appellant, Mrs Danks and Mr Taylor on 29 April 2004.

18. Mrs Danks and Mr Taylor did not appeal against the further review decision. The Appellant himself gave notice of appeal against that decision on 23 May 2004 stating that the grounds of his appeal were that the decision was an "unrealistic decision".

19. In his oral evidence at the hearing of this appeal, the Appellant gave evidence that Mr Taylor and Mrs Danks had decided not to appeal further against the further review decision.

20. The Appellant admitted, in his oral evidence, that he had told lies to the interviewing officer. He admitted that he was a non-smoker and that it had not been his intention to smoke the tobacco himself. He admitted that the tobacco was not for his own personal use and claimed that he had had casual relationships with three, four or five single mothers who used his part-time taxi service, and that he had intended to help them out with donations of one or two pouches of tobacco to each when he saw them. He accepted that he had never given that explanation before the hearing of this appeal, for the reason that it was easier to give false answers to the interviewing officer than to tell the truth. He agreed that Mr Crouch had been right to conclude that the tobacco was not for the Appellant's own use. We find that the Appellant, on his own admission, had lied to the interviewing officer when claiming that he was a smoker and when he answered questions to the interviewing officer about his consumption of tobacco. We find that he lied to the interviewing officer when he told the officer that he intended to smoke the tobacco himself. The Appellant did not correct his lies either in the correspondence with the Commissioners, or when his appeal first came for hearing on 24 March 2004. We find that we did not believe the Appellant's version of events and of his intentions given to us in the oral evidence of the Appellant at the hearing of this appeal. We were not satisfied that the Appellant had intended to give one or two pouches of tobacco to three, four or five of the women who used his taxi, when he saw them. We find his explanation to be improbable and one that did not satisfactorily explain the large quantity of tobacco being imported by him.

21. The Appellant's case was that he had purchased one third of the total quantity of tobacco, and that the other two thirds were the purchases of his passengers. We did not accept that contention and we find that on all the evidence it was more likely than not that the total amount of 22.5 kg was being imported by the Appellant himself.

22. We find that the tobacco was not being imported into the United Kingdom by the Appellant for his own use. We further find that the tobacco was being imported for a commercial purpose. We find that the Commissioners had satisfied the burden of proof upon them in that respect.

23. The Appellant, in his oral evidence at the hearing, claimed that the review officer, Mr Crouch, had failed to give sufficient weight to the degree of hardship caused to the Appellant by the loss of his vehicle. He claimed that he was a part-time taxi driver and that the taxi was the principal source of his income, claiming that 80 per cent of his income had come from the part-time driving of the taxi and the other 20 per cent from the rent he received from property that he owned. Mr Crouch, the reviewing officer, in his evidence confirmed that he had taken into account the Appellant's claims for hardship caused by the loss of his vehicle and had concluded that there was not a sufficient degree of exceptional hardship to justify an exception from the normal policy of the Commissioners. The Appellant had deliberately used his vehicle to import a large quantity of tobacco which was not for his own use, and the loss of a part-time income from the use of the vehicle was a direct result of this. The Appellant, in his oral evidence, had valued the vehicle at about £2,400. This value was very close to the amount of the revenue on the tobacco of approximately £2,189. We find that Mr Crouch had taken into account the hardship caused to the Appellant by the loss of the use of the vehicle until he purchased another vehicle, and that that hardship was not a sufficient degree of exceptional hardship which would justify a departure from the normal policy of the Commissioners, not to restore the vehicle to the Appellant. We agree with Mr Crouch's conclusions.

24. The Appellant, at the hearing, claimed that the Commissioners should have borne in mind in their review, the length of time that had elapsed between the seizure of the vehicle and the final hearing of his appeal. Mr Crouch gave evidence that he had taken into account this length of time, and whilst the final hearing had been delayed (not through the fault of the Appellant but because the tribunal and the Commissioners had awaited the decisions in the Hoverspeed and Lindsay cases), the Appellant himself had contributed to the length of time by not admitting earlier that he did not smoke and that the tobacco was not for his own use. We find that the time lapse between the seizure and the hearing did not cause exceptional hardship to the Appellant which would justify the Commissioners departing from their normal policy of not restoring the vehicle to the Appellant. The Appellant further gave evidence at the hearing, claiming that the seizure of the vehicle had caused the local Boston Borough Council to delay restoring to the Appellant his taxi licence. He had had to take the Council to the local magistrates' court on 12 March 2002 to obtain the restoration of his taxi licence. Mr Crouch, in his evidence at the hearing, confirmed that the Appellant had not indicated in any correspondence with the Commissioners that he had had problems with the Boston Borough Council in relation to his taxi licence and accordingly Mr Crouch had not taken this into account in his review decision, as he was not aware of any such problem. He concluded that he would not have altered his decision if he had been aware of that information. We find that the delay in the Appellant obtaining a taxi licence from his local Council did not amount to exceptional hardship which would justify the restoration of the vehicle to the Appellant.

    Conclusions

25. We find that the Appellant practised deceit in claiming that part of the tobacco was imported by him for his own consumption, whereas on his own admission at the hearing he was a non smoker. We find that the amount of the excise goods being brought back by the Appellant and his passengers was considerable. It was considerably in excess of the guidelines. By the legislation excise duty is chargeable when goods are held for a commercial basis. The goods were not being imported by the Appellant and his passengers for their own use. The goods and vehicle were rendered liable to forfeiture under the Customs and Excise Management Act 1979. The Appellant made no challenge to the legality of the seizure, and the goods and vehicle were condemned as forfeited under the provision of that Act. The Act provides that the Commissioners may, as they think fit, restore anything forfeited or seized. The Finance Act 1994 sets out the procedure in relation to reviews. Section 16 of the Finance Act 1994 sets out the jurisdiction of this tribunal.

26. We find that the review officer, Mr Crouch, took into account all relevant circumstances as disclosed to him in concluding that the vehicle should not be restored to the Appellant and that the 22.5 kg of tobacco should not be restored. We find that the Commissioners acted reasonably in reaching that review decision. We find that the facts as disclosed at the hearing of this appeal, and as found by us, would not reasonably have caused the Commissioners to depart from that decision. We find that the Commissioners acted reasonably in concluding that there were no exceptional circumstances which would justify the restoration of the vehicle and goods to the Appellant. The amount of duty endeavoured to be evaded was almost equivalent to the value of the vehicle. We find the decision not to restore the vehicle and the goods was proportionate.

27. We find that the decision of the Commissioners was reasonably arrived at, and that the Commissioners had not acted in a way that no reasonable Commissioners could have acted, they have not taken into account irrelevant matters or disregarded something to which they should have given weight and there has been no error in law.

28. The appeal is dismissed. The Commissioners did not apply for costs and we make no order for costs.

    IAN E VELLINS

    CHAIRMAN
    Release Date: 22 February 2005

    MAN/04/8072