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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 >> Simmonds & Anor v Revenue & Customs [2009] UKVAT(Excise) E01161 (16 January 2009) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2009/E01161.html Cite as: [2009] UKVAT(Excise) E01161, [2009] UKVAT(Excise) E1161

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E01161

EXCISE DUTY- appellants brought in 25 kilos of hand rolling tobacco and 600 cigarettes – deemed forfeiture – wife requested restoration of car- wife recovering from loss of son hence numerous trips abroad – opportunity to bring in large quantities – deemed forfeiture – arguments as to "own use" not available in tribunal- no abuse of process - respondents acted reasonably - case dismissed.

MANCHESTER TRIBUNAL CENTRE

MR AND MRS D SIMMONDS Appellants

- and -
THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: David S Porter Chairman

Peter Whitehead Member

Sitting in public in Manchester on 18 November 2008

Appellants appeared in person

Mr Josh Shields of counsel instructed by the acting solicitor for the Commissioners for

H M Revenue and Customs, for the Commissioners

© CROWN COPYRIGHT 2008


 


DECISION
1. Mr and Mrs Simmonds appeal against the review by Julie Wiggs contained in a letter dated 26 May 2008 refusing to return the Appellants' car. The Appellants say that the goods were purchased for their own and their families' use and as they were not smuggling, their car should be returned. The Respondents say that as no application had been made to the Magistrates Court the goods had been deemed forfeit under section 139(6) and Schedule 3 of The Customs and Excise Management Act 1979. Further the Appellants could not claim that the goods were for their own use in the tribunal and as a result the car could only be returned under the Respondents policy in relation to the restoration of vehicles. As the goods were deemed forfeit there were no grounds under the Respondents policy for the car to be returned
2. Mr Josh Shields of counsel instructed by the acting solicitor for the Commissioners for H M Revenue and Customs appeared for the Respondents and produced a bundle of documents to the tribunal and called Julie Wiggs as a witness. The Appellants appeared in person and brought their daughter with them.

The facts

3. All parties gave their evidenced under oath. The Appellants live in Sheffield and their son died in 2007. Mrs Simmonds said that, as a result, she had become very depressed and she had suffered a slight stroke. She had been a taxi driver for many years before her son died and found comfort in driving. As a result she and her husband, accompanied by Mr and Mrs Eustace on each occasion, started making visits to the continent. Her husband would not drive aboard and Mr and Mrs Eustace did not drive either so the driving was left to her. She said that as she was not very sure about driving abroad (although she had driven in the United States) she thought it would be a good idea to introduce herself slowly to Europe. As a result they went with Mr and Mrs Eustace on 28 February 2008 to Zeebrugge catching the 7.00 pm ferry from Hull. This enabled them to sleep on the ferry before its arrival in Zeebrugge. On the following day they drove to Bruge and came back to Zeebrugge in the evening in time to get the 7.00pm ferry back to Hull, which docked in Hull the next morning allowing them all to sleep on the boat again. They were stopped by Customs and they disclosed that they had bought 25 kilos of hand rolling tobacco between them and 600 cigarettes. The hand rolling tobacco was split between the four of them although Mrs Simmonds told the Tribunal that she and her husband had initially paid for it. It appeared that Mr and Mrs Eustace had been previously with the Appellants on 19 February 2008. Mr Eustace had mistakenly produced the receipt for 12 kilos, he had purchased on that earlier occasion, when they were stopped by the customs Offices on 28 February 2008, the receipt for 12 Kilos he had purchased on that earlier occasion. We were told that Mr and Mrs Eustace had instructed solicitors to act on their behalf to request the return of their goods but we are unable to verify that.
4. All four passengers were interviewed separately and because there were insufficient interviewing rooms Mrs Simmonds was interviewed in the main hanger. She said that having suffered a stroke she was a little confused and that she had become very cold. The evidence given to the tribunal did not agree with her signed statement. Specifically Mrs Simmonds said that she was asked if she could roll a cigarette. She advised the tribunal that her husband did this for her since her stroke. She indicated to the officer that she would try. The notes from the interview state ;

"- Mrs Simmonds unable to roll a cigarette with machine supplied and did not have her machine with her"

Mrs Simmonds alleges that she was not given a machine during the interview but some time later. Nor had the officer checked whether she could use it. The interview notes show that the interview started at 09.12 and finished at 11.00am. The writing in the notes is continuous and we cannot accept Mrs Simmonds version of the facts. She signed the statement indicating that it was correct. There was also some confusion as to the amount of money that Mr and Mrs Simmonds had available to them It appears that they had an income of approximately £1100 per month with expenditure in excess of £750 per month for living purposes. They had spent £662.50 on the tobacco. Mrs Simmonds confirmed that she had recently given her daughter a washing machine and that, since the death of her son, she was prepared to provide her daughter with anything she needed. Her daughter and her son-in-law were going thorough a difficult time and her daughter had recently had pneumonia. Mrs Simmonds alleged that she had bought the hand rolling tobacco for her self and her daughter. Mrs Simmonds was a heavy smoker and often took cigarettes with her when they went abroad.

Mrs Simmonds had claimed that they had only been to Zebrugge about 5 or 6 times in the previous twelve months. It appeared that the Customs records revealed that their vehicle had been checked going though Hull on 16 previous occasions between 28/03/07 and 28/02/08 when they were stopped. The Appellants had been handed Notice 1 and 12 A, a warning letter and a seizure information form. The Appellants had written on 29 February 2008 (using Letter B) indicating that as Mrs Simmonds was registered disabled she wanted her Toyota Avensis back and the return of their goods. The request was refused on 9 April 2008 and the Appellants wrote again in April 2008 requesting a return of the car on humanitarian grounds. Mrs Wiggs wrote back refusing to restore the car. Under oath Mrs Wiggs said that with the information available to her at the time of the review, she felt that it was not credible that the Appellants were not smuggling. Mrs Simmonds admitted that she smoked and yet when she went abroad she suggested that she never bought any tobacco other than on the occasion which is the subject of the appeal. Mr and Mrs Simmonds did not appear to have enough money available to pay for the repeated trips and to expend over £600 on tobacco. The only way that she considered that they could fund their trips was if they were buying tobacco and selling it on their return. The Customs policy in relation to the return of vehicles is clear. Vehicles will be considered for return if the goods had been purchased for members of the family or friends and there has been no previous offence and large quantities were not involved; Even if the supply was for profit so long as the quantity of the goods was small and it was the first occasion the vehicle would be restored. The vehicle could also be returned if there are exceptional circumstances. Goods will never be returned. In the present case she did not believe there was any real hardship to the Appellants as they had another car which would be available to Mrs Simmonds and the quantity of tobacco was large. Further they had bought two additional cars after the seizure

The Law

5. Condemnation proceedings

Section 139(6) of the Customs and Excise Management Act 1979

Schedule 3 to this Act shall have effect for the purpose of forfeitures, and of proceedings for the condemnation of any thing as being forfeited, under the customs and excise Acts.

Schedule 3

3. Any person claiming that any thing seized as liable to forfeiture is not so liable shall, within one month of the date of the notice of seizure or, where no such notice has been served on him, within one month of the date of the seizure, give notice of his/her claim in writing to the Commissioners at any office of customs and excise.

5. If on the expiration of the relevant period under paragraph 3 above for the giving of notice of claim in respect of any thing no such notice has been given to the Commissioners, or if, in the case of any such notice given, any requirement of paragraph 4 above is not complied with, the thing in question shall be deemed to have been duly condemned as forfeited.

6. Where notice of claim in respect of any thing is duly given in accordance with paragraphs 3 and 4 above, the Commissioners shall take proceedings for the condemnation of that thing by the court, and if the court finds that the thing was at the time of seizure liable to forfeiture the court shall condemn it as forfeited.

7. Where any thing is in accordance with either of paragraphs 5 or 6 above condemned or deemed to have been condemned as forfeited, then, without prejudice to any delivery up or sale of the thing by the Commissioners under paragraph 16 below, the forfeiture shall have effect as from the date when the liability to forfeiture arose.

Section 141 CEMA 1979 provides as follows-

(1)…where anything has become liable to forfeiture under the Customs and Excise Acts –

(a) any ship, aircraft, vehicle…which has been used for the carriage handling ,deposit….of the thing so liable for forfeiture…and

(b) ..any other thing mixed, packed or found with the thing so liable shall also be liable to forfeiture.

Section 152(b) CEMA 1979 provides that the Commissioners may as they see fit, restore, subject to such conditions (if any)as they think proper, any thing forfeited or seized.

6. Custom's policy

The Commissioners' general policy in relation to the restoration of private vehicles used for the improper importation or transport of excise goods states that they should not normally be restored. The policy is intended to be robust so as to protect legitimate UK trade and revenue and prevent illicit trade in excise goods. However vehicles may be restored at the discretion of the Commissioners subject to such conditions (if any) as they think proper (eg fees) in circumstances such as the following:

•    If the excise goods were destined for supply on a " not for profit" basis, for example, for re-imbursement

•    If the excise goods were destined for supply for profit, the quantity of excise goods is small, and it is a first occurrence

•    If the vehicle was owned by a third party who was not present at the time of the seizure, and can show that they were both innocent of and blameless for the smuggling attempt, then consideration may be given for restoring the vehicle for a fee: if in addition to being both innocent and blameless the third party demonstrates that they have taken reasonable steps to prevent the smuggling in the vehicle then consideration may be given to restoring it free of charge.

" Not for profit"

From 28 March 2006 the Commissioners' policy for seized vehicles involved in smuggling excise goods which are not for own use, but are to be passed onto others on a "not for profit" reimbursement basis, has changed:

In non-aggravated cases vehicles will not normally be seized (but a warning letter will be issued). The meaning of "aggravated" is explained below.

Aggravated cases depend on how many aggravated offences have occurred within the previous 12 months:

a. For a first aggravated detection vehicles will normally be seized and restored for 100% of the revenue involved

b. For a second aggravated detection vehicles will normally be seized and restored for 200% of the revenue involved

c. For a third aggravated detection vehicles will normally be seized and not restored unless there are exceptional circumstances.

The 100% and 200% restoration fees are subject to a maximum of the trade buying price of the vehicle in Glass' Guide.

In all cases any other relevant circumstances will be taken into account in deciding whether restoration is appropriate. A vehicle will not normally be restored to a third party in a situation where that would be tantamount to restoring it to a person responsible for the smuggling.

The meaning of "Aggravated" in "Not for profit" cases

Aggravating circumstances include-

•    Any previous offence by the individual

•    Large quantities, for example more than:

6kg of hand rolling tobacco or

6,000 cigarettes or

20 litres of spirits or 200 litres of wine or 225 litres of beer.

•    Any other circumstances that would result in restoration not being approrpiate

Submissions

6. Mr Shields submitted that as the Appellants had not chosen to apply to the Magistrates' Court the goods were deemed forfeit under section 139 (6) (5) and it is therefore not open to the Appellants to allege, before the tribunal that the goods were purchased for their own use. Mr Justice Richards in the Commissioners of Her Majesty's Revenue and Customs v David Mansel Dawkin CH/2007/APP/0323) states:

" In my judgment, this (the failure to take into account evidence as to the purchase of the goods for his own use) discloses a significant misapprehension on the part of the Tribunal. The prima facie position of HMRC is the same as that of the Tribunal. They are bound by the deeming effect of section 5 of schedule 3 of CEMA. However, where it would be an abuse of process for the importer to raise the issue as to whether he imported the goods for his own use, HMRC like the Tribunal is bound to consider it. Unless it would be an abuse of process it cannot be a ground of criticism of HMRC or a factoring favour of permitting the importer to raise the issue before the Tribunal that HMRC did not consider it on the review. There may be exceptional cases, such as the existence of incontrovertible evidence that the goods were for the importers own use, which would require the reviewing officer to consider the issue, but this is not the present case."

7. The Appellants had asked for a review only in relation to the car. The Respondents' policy is clear in relation to the return of vehicles. Based on the evidence Mrs Wiggs' conclusion was that the goods were imported on a "for profit" basis, she did not believe the Appellants account. In relation to "hardship" she noted that the Appellants had been able to replace the vehicle. In the circumstances Mrs Wiggs acted reasonably and the appeal should be dismissed
8. Mrs Simmonds insisted that they had not been smuggling and the car should be restored. Mrs Simmonds referred us to an article in which the individual had brought back the equivalent of 80,000 hand rolling cigarettes which would have lasted 11 years for a 20 a day smoker. The tribunal had ruled that the tobacco had been brought in for his own use and Customs had not appealed the case.

The decision

9. We have considered the facts and the law and we are satisfied that the Reviewing Officer acted reasonably in refusing to return the car. The evidence of the transaction considered by Mrs Wiggs in her review letter was not credible. We agree with her that it is unlikely that the Appellants could afford to buy the quantity of tobacco they did on the occasion of this appeal. We were surprised to be told by Mrs Simmonds that Mr Simmonds had initially funded the operation. This meant that in addition to the costs of the trip he was able to raise £622.50 to pay for the tobacco. The details of their income and expenditure were very general and we believe that they would have very little available money at the end of each month. There would certainly not be enough to fund the 18 or more trips they have made during a period of 18 months. Further, Mrs Simmonds indicated, not only that she had suffered from depression, but that she had had a mild stroke. We believe her, but we find it hard to believe that she could drive the distances she did if her condition was a distressing as she wished us to believe. It is also highly unlikely that a heavy smoker, which she admits she is, could go aboard that often and not be persuaded to buy cigarettes on a much cheaper basis. It is significant that they travelled with Mr and Mrs Eustace on visit abroad and that Mr Eustace had brought back 12 kilos of hand rolling tobacco on a previous occasion. We have no doubt that the couples regularly went abroad in order to purchase tobacco to sell back at home
10. Mr Shields produced to the tribunal an amended copy of Notice 12 A. He believes that the notice is clear, we cannot agree. This is not least because it has to be read by a variety of people at a time of stress. It seems to us that in adopting (perhaps of necessity) the words "seized" and "restoration" the pamphlet leads to confusion. Nor does it make clear that an application must be made to the Magistrates Court if applicants wish to argue that the goods were purchased for their own use. (See the Commissioners of Her Majesty's Revenue and Customs v David Mansel Dawkin CH/2007/APP/0323 referred to above).
11. In considering the application for the return of the goods, however, the Reviewing Officer must consider all the facts in order to exercise discretion within the Custom's Policy for the restoration of a vehicle. This will not alter the fact that the goods are "deemed forfeit" and cannot therefore be returned to the applicant.
12. As a result of considering the law, we accept Mr Shields' submission that it is not open to the Tribunal to hear evidence as to "own use" and that there is no "abuse of process" which would entitle the Tribunal to find that the goods have been purchased for the Appellants' own use. Consequently the goods cannot be returned to the Appellants because they are deemed forfeit. The only basis on which the vehicle can be returned is within the terms of the Customs policy. Mrs Wiggs has considered the circumstances of the purchaser and she has decided that it was not a "not for profit" transaction and that it was an aggravated case. We agree with her. In those circumstances she can only agree to the return of the vehicle if there are exceptional circumstances. As the Appellants had another vehicle and had purchased two more since the seizure she rightly considered that there was no real hardship which would justify the return of the vehicle.
13. Mrs Simmonds has referred to a case where a vehicle and the goods have been returned when the quantities were substantial. Without full details of the case referred to by Mrs Simmonds we are unable to say whether or not the facts were similar to those before this tribunal. We therefore find that the Reviewing Officer acted reasonably in not restoring the vehicle and we dismiss the appeal.

As the Respondents made no request for costs none are awarded.

DAVID S PORTER

CHAIRMAN

MAN/08/8088 Release Date: 16 January 2009