Appeal Numbertc/2009/12903

[2011] UKFTT 407 (TC)

TC01262

Appeal numberTC/2009/12903

Excise Duty – seizure of vehicle – S 139 and 141 CEMA 1979 – Appeal against decision not to restore – Appeal Dismissed

FIRST-TIER TRIBUNAL

TAX

McGEOWN INTERNATIONAL LIMITEDAppellant

- and -

THE COMMISSIONERS FOR HER MAJESTY’S

REVENUE AND CUSTOMS ("HMRC")Respondents

TRIBUNAL: IAN WILLIAM HUDDLESTON, TRIBUNAL JUDGE

JOHN ADRAIN, FCA

Sitting in public at Bedford House, Belfast on 15 March 2011

Mr. Roger Dowd BL instructed by Donnelly Neary & Donnelly for the Appellant

Mr. Sharpe, BL, instructed by the Crown Solicitors Office for the Respondents

© CROWN COPYRIGHT 2011

1

DECISION

Appeal

1.The subject matter of this Appeal is the disputed decision (on review) not to restore a Skania 144 topline tractor unit, registration number HLZ 6460 and an attached Scmidz refrigerated box trailer, registration number MG 179 (collectively referred to as "the Vehicle") which was found to be carrying approximately 4.25 million cigarettes ("the Goods") seized on the 7June 2008 on its arrival into the United Kingdom at Dover.

2.The Vehicle was owned by McGeown International Limited ("the Appellant"). The Appellant made application for restoration of the Vehicle by way of a letter of the 9 June 2008. Restoration was offered by HMRC in a letter of the 22 April 2009 subject to the payment of a sum of £24,600 – the amount being equal to the trade value of the Vehicle. The Appellant sought a review of that decision in its letter of the 20 May 2009. Following that review, however, HMRC took the decision not to restore the Vehicle. That was communicated to the Appellant in a letter of the 24 June 2009. It is that reviewwhich is the subject matter of this Appeal.

Facts

3.The facts of the case are not substantively in dispute, and can be shortly summarised.

4.The Vehicle was stopped on the 7 June 2008 at Dover Eastern Docks, at which point it was being driven by an employee of the Appellant, Mr. Shane McLaughlin. Mr. McLaughlin was interviewed at that time and confirmed that this was the first time that he had worked for the Appellant and that he had only started working for the Appellant on Monday 2 June 2008. There was some dispute in relation to this point, insofar as the Appellant's documentation suggested that Mr. McLaughlin commenced work on the 6 June 2008, but we find that nothing material turns on that point.

5.Mr. McLaughlin had been offered the job based, in part, on the fact that his uncle had previously worked for the Appellant, and in part upon the recommendation of a Mr. Darren Blair of a company called B Mac International.

6.In his interview, it transpired that Mr. McLaughlin had not been given any information about wages, nor had he actually met anyone from the company itself, and had concluded the arrangements by phone and/or text.

7.After delivering an outward bound load of cosmetics to a destination in France, he was instructed to pick up a load of apples from MUK Logistics near Hanover in Germany. From the information available to us, it seems that he travelled to that location and waited in the cab of the lorry whilst the goods were loaded onto the lorry. It is probably worth pointing out at this stage that the CMR stated that the goods were to be picked up at Heuer Transport, although the CMR itself and, indeed, all of the details on it, subsequently proved to be fraudulent.

8.In any event, in the interview which Mr. McLaughlin gave he indicated that he did not take part in the loading of the Vehicle. After it was loaded, he set off en route back to the United Kingdom. It appears that he only sealed the trailer when he arrived in Adinkirke in Belgium, and then largely to prevent stowaways from entering the trailer unit.

9.On arriving in Dover, Customs Officials examined the load which was manifested as 24 pallets of apples. On inspection, the Officials observed that each pallet contained 42 boxes and, upon further examination, it appeared that whilst there was a top layer of apples in the boxes (all of which were of poor quality), underneath that layer were cigarettes, totalling approximately 4.25m in aggregate (ie. the Goods). The Officer, having been satisfied that the cigarettes were to be used for a commercial purpose and that none of the proper methods of transporting excise goods to the United Kingdom had been used, seized them under Section 139(1) of the Customs & Excise Management Act 1979 ("CEMA") as being liable to forfeiture under both Regulation 16 of the REDS Regulations, and Section 49(1)(a)(i) of CEMA.

10.The Vehicle itself was seized under Section 139(1) as being liable for forfeiture pursuant to Section 141(1)(a) because it had been used for the carriage of goods which were themselves liable to forfeiture.

11.At that point Mr. McLaughlin was cautioned, arrested and searched, and was subsequently interviewed on three occasions.

12.The results of those interviews provided the factual matrix which is described above.

13.The Appellant did not challenge the legality of the seizure of the cigarettes and the Goods therefore were condemned as forfeit to the Crown pursuant to paragraph 5 of Schedule 3of CEMA.

14.Obviously this Tribunal is not concerned with that aspect of the case, and is concerned only with the issues surrounding the seizure of the Vehicle. It is perhaps easier to deal with the subsequent issues which arose by reference to the correspondence which then passed between the parties as this was germane to the Appeal.

15.The first letter in that chain of correspondence was a letter dated 9 June 2008 from the Appellant, through its representative Mr. Brian Wilson, by which restoration of the Vehicle was sought. In response, HMRC wrote to the Appellant on the 10 June 2008 and asked for essentially 6 pieces of information:

"When considering restoration of commercial vehicles seized because they are carrying goods liable to forfeiture, Customs will consider, amongst other factors, the involvement or otherwise of the owner / haulier and the steps that the haulier has taken to prevent their vehicles being used to carry smuggled goods. It is for you to decide what evidence to provide, but it is in your interest to consider sending the following:

1a copy of the terms and conditions of the driver's contract;

2copies of employment references from the driver's previous employers;

3details of any measures you take to prevent your vehicle being used for smuggling;

4details of the checks that you make to ensure the legitimacy of the consignor and the consignee;

5details of any physical checks made of the load;

6copies of any instructions or written procedures that you issue to your driver or other staff.

This is your opportunity to bring to our attention anything else that you would like us to consider in making a decision."

16.The Appellant wrote back on the 12 June 2008 enclosing the following documents, a number of which formed the basis of examination in chief and cross examination during the course of the Appeal and, therefore, we expand (where relevant) in relation to some of those documents:

(1)the Appellant sent a copy of the "Company's" terms and conditions of the driver's employment contract. For the purposes of this Appeal, the Tribunal notes the following salient facts relating to that contract:

(a)in the first place, the employer purports to be Raven Transport Limited of Dromad, Ravensdale, Dundalk, and not the Appellant itself;

(b)within the text of the terms and conditions of employment, there are various references to "Raven Transport", "McGeown International", "McGeown Int", "McGeown Transport" and "McGeown Tsp";

(c)the "Employee Information" section makes it quite clear that smuggling of contraband goods, such as tobacco, alcohol, drugs etc. constitutes gross misconduct potentially resulting in dismissal;

(d)the "Working Instructions" for employees sets out the Company's policies as regards loading, security and delivery of goods in transit and the procedures to be adopted in relation to transport documentation;

(e)the employment contract was suggested to have begun on the 6 June 2008 – although as we have mentioned above Mr. McLaughlin in interview indicated that he actually started employment on the 2 June 2008 and in fact had left the United Kingdom and indeed made his first delivery on behalf of the Appellant in France on the 5 June 2008;

(f)the contract provided for a basic wage of £280 per week which again was at variance with Mr. McLaughlin's interview where he said that he wasn't actually aware of the rate at which it was proposed that he would be paid.

In any event, it became clear from questions put by the Tribunal to the Appellant's representative that the detail of the contract had not been made known to Mr. McLaughlin prior to his departure from the United Kingdom and, therefore, it is difficult to conclude otherwise than that he was not aware of the detail of that contract in any material respect prior to his departure from the United Kingdom;

(2)the personal reference sought by HMRC was fulfilled by a letter written by Mr. Wilson (an employee of McGeown International Limited) confirming that Mr. Wilson knew Mr. McLaughlin's uncle, that he did not meet Mr. McLaughlin personally, but he offered him work for a period of six weeks;

(3)the covering letter of 9 June 2008 itself informed HMRC that in this particular case the consignor for which the Appellant was acting had been a new customer, European Wholesale Suppliers, who had been referred to McGeown International by Heritage Transport in Dover.

17.The response under which the initial decision was taken by HMRC was dated the 22 April 2009. That letter cited the exact quantity of the excise goods which had been seized, ie. 4,830,160 cigarettes with an excise duty of £828,758.85. On the issue of restoration, the original decision maker, Ms. Susan Giles, offered restoration of the Vehicle to the Appellant based on HMRC's policy, subject to the payment of £24,600 which represented the trade value of the Vehicle. As is normal, that letter informed the Appellant, if unhappy with the decision, that it could apply for it to be reviewed by an impartial review officer subject to that request being received within a forty five day period.

18.McGeown International Limited wrote to HMRC on the 20 May 2009 requesting a review and attaching a copy of the fax confirming the order.

19.That fax purported to be from European Wholesale Supplies Limited, Old Brompton Road, London and mandated the collection of a full (but unidentified) load from MUK Logistics, Wunstorf, Hanover, with a destination of Total Produce, SwordsBusinessPark, Swords, Dublin, Ireland.

20.The fax incorporated a specific provision that "the driver must have loading bars. Temp plus 3 [degree c]" and also confirmed that the rate agreed for the transaction was €2,950.

21.The transmission details on the fax suggested activity on the 6 June 2008 (the date of the collection) at 14.24 to/from telephone number 028 30251617, ie. McGeown International Limited.

22.The covering letter itself indicated that McGeown International had interviewed the driver "at length" and "confirm[ed] that he is entirely ignorant of the cigarettes on board nor [did] he have any idea how they got on board." The letter continued "we feel aggrieved that the blame is being placed either at our door or at our driver's door without any proof that we are involved or complicit with the offence of smuggling. Surely we are entitled to the benefit of the doubt, given that there is not one shred of evidence to point to the fact that either the driver or this company knew of the existence of smuggled cigarettes on board. We would ask you to revisit the case and release the lorry and trailer without payment"

23.The next letter in sequence was a letter from HMRC dated the 22 May 2009 indicating that a review officer would conduct a review, and suggesting "if in the meantime you have any further evidence or information that you would like to provide in the support of your request, then please send it to the Review Officer …….. this is your last opportunity to provide the Review Officer with such information: if you do not provide it now, it cannot be taken into account in the review".

24.McGeown International confirmed by a letter of the 27 May 2009 that all information had been furnished.

25.That leads us to the subject matter of this Appeal, namely the review which was carried out by the HMRC Review Officer, Mr. R. Brenton, the result of which was communicated to the Appellant on the 24 June 2009. Mr. Brenton's conclusion was that the Vehicle should not be restored on the basis of HMRC's published policy that where the haulier fails to provide evidence satisfying HMRC that the haulier was neither responsible for nor complicit in the smuggling then (where the revenue evaded is greater than £50,000) the vehicle would not normally be restored. On his finding that the excise duty in this case exceeded £800,000, he took the view that it was inappropriate for the Vehicle to be restored. It is that conclusion which forms the basis of the present appeal.

26.Due to the way that the appeal hearing developed, it is essential that we spend some time looking at Mr. Brenton's decision.

27.Mr. Brenton, in his letter, quoted extensively from the interviews between HMRC and Mr. McLaughlin. Interviews which, as we have already said, essentially established the factual matrix which does not appear to have been substantially in dispute between the parties. In his witness statement and in his evidence to the Tribunal Mr. Brenton confirmed that in coming to his conclusion he reviewed:

(1)all of the correspondence which has been summarised above;

(2)the circumstances regarding Mr. McLaughlin's appointment as an employee;

(3)the transcripts of Mr. McLaughlin's statements;

(4)the nature of the concealment and the use of the poor quality apples as cover;

(5)the information which the Appellant had provided during the chain of correspondence;

(6)the results of an HMRC investigation into the legitimacy of the CMR and, in particular, the connection with Heuer Transport which, as Mr. Brenton commented in his letter, disclosed that:

(a)Heuer had been insolvent since August 2007 (although in the appeal this was confirmed as 2008);

(b)that they had never shipped a load of apples to the UK using MUK;

(c)Total Produce, Ireland, was not a company with which Heuer did business;

(d)that no lorry, registration HLZ 6460, was loaded with apples at MUK Logistics between June and August 2008.

28.The detail of that was contained in Mr. Brenton's review letter. He then continued:

"I note that the only individual contact Customs has had is via Brian Wilson, and nothing from Mr. Francis McGeown, the registered director of the Company. It has also come to my attention that Mr. Wilson was the main contact for Raven Transport Limited (aka McGeown Transport) in the case of the attempted smuggling of 120kg of amphetamine, 240,000 mda tablets, and 500 grammes of herbal cannibas on the 24 March 2007, and that the Raven Transport Limited "information pack" issued was identical (including smudged text) to that of McGeown International Limited.

This endorses my opinion that the McGeown Haulage Companies are inextricably linked and have been / are actively involved in the smuggling of counterfeit cigarettes, tobacco and rebated fuel oil, and this present case is another example of this illicit activity."

29.After that statement, Mr. Brenton then included a table citing some 11 instances of what he suggested was smuggling "involving the McGeown Haulage Companies" – a point we shall return to below.

30.Mr. Brenton then, in effect, concludes his review decisionas follows:

"This was no casual concealment, or one that could easily be arranged without the knowledge of both the haulier and the driver. In this case not only were the smuggled cigarettes concealed, but they were placed deep within the load that it is most likely that they were put there when the vehicle was loaded with, what appears to be, an uneconomical load of poor quality apples. It is difficult to see how either the haulier or the driver could not have known about the concealment. I conclude from the evidence available to me that, on the balance of probabilities, that you, the haulier, was involved or at least complicit in the smuggling attempt.

To date I have not seen any audit trail or documentation on how McGeown received the order to transport this obvious illegitimate consignment; no evidence of payment; what checks McGeown International made to confirm if the client was legitimate; if the consignee was expecting the goods; if McGeown had dealt with this company in the past or what efforts have been made to trace the person / company who placed the initial order. The fact is, you have produced no evidence to show that you performed the usual checks that a legitimate haulier would make confirms to me that you were complicit in this smuggling venture."

31.His letter proceeds to deal with the issues of proportionality and hardship as one would expect, but no issue was taken in relation to that aspect of his decision.

32.The next letter in sequence was a letter of 29 June 2009 from Mr. Francis McGeown in which: