EXCISE DUTY – restoration of excise goods – whether for private use – no –appeal dismissed

LONDON TRIBUNAL CENTRE

SEAN FANNINGAppellant

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THE COMMISSIONERS OF CUSTOMS AND EXCISERespondents

Tribunal:DR JOHN F AVERY JONES CBE (Chairman)

MRS E M MACLEAD CIPM

Sitting in public in London on 29 July 2004

The Appellant in person

Mr David Manknell, counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004

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DECISION

  1. Mr Sean Fanning appeals against a decision on a second review dated 10 March 2003 made following the Lindsay case declining to restore 10 kilos of hand rolling tobacco (the minimum indicative limit was 3 kilos), 800 cigarillos, 27 litres of still wine and 90 litres of beer. Previously his car has been seized but the Commissioners decided to restore it in the second review and paid him compensation as it has already been disposed of to the finance company. Accordingly, the appeal is now only in relation to the excise goods. The Appellant appeared in person; the Commissioners were represented by Mr David Manknell.
  2. The only dispute in the appeal is whether the excise goods were for the Appellant’s own use, as he contends.
  3. Both the Appellant and the review officer Mr P A Devlin gave evidence.
  4. We find the following facts.

(1)The Appellant was stopped on 19 May 2001 at Dover travelling with a Mr Bramhall. They correctly declared the amount of tobacco and referred to wine and beer, saying that it had been purchased in France and that it was for their own use.

(2)The goods were purchased at Adinkerke in Belgium. He said that he had not realised that he had been into Belgium. He was following instructions and got lost. He remembered paying a toll but not crossing a frontier.

(3)Both the Appellant and Mr Bramhall purchased identical amounts of the same goods.

(4)The Appellant said at interview that he normally smoked 30 Embassy cigarettes a day but was going onto pouches to save some money. He told us that at the time he sometimes smoked tobacco. He did not bring in any cigarettes.

(5)He also said that he expected a pouch to last 3 to 4 days or 5 if he was lucky. He also said that he hoped 200 pouches would last 3 to 4 years but that they would probably last 6 to 8 months or 12 if he was lucky. On his stated consumption, 200 pouches would last between 600 days (1.6 years) at 3 days per pouch; 800 days (2.2 years) at 4 days per pouch; and 1000 days (2.7 years) at 5 days per pouch.

(6)The goods cost about £600, of which the tobacco was £477. He said that his income was £1,200 per month and that he had savings of a few hundred pounds. He told us that he earned an additional £200 to £300 per month and that his savings might then have been £2,000.

(7)The Appellant is in the army and said at interview that the price of the tobacco in the NAFFI was “£4 odd, may be over £5 now.”

(8)In his interview he did not give any reason for the purchase of alcohol. In a letter to the Commissioners of 21 May 2001 he said that the wine and beer was for his birthday party on 16 June 2001. He told us that it was for a party for a friend.

(9)He told us that he paid cash for the goods but could not remember the circumstances in which he obtained the cash.

  1. The review decision concluded that the tobacco was not purchased for the Appellant’s own use.
  2. Our jurisdiction is by section 16(4) of the Finance Act 1994 confined to determining whether we are satisfied that the Commissioners could not reasonably have arrived at their review decision.
  3. We ask ourselves whether we believe the Appellant’s claim that the goods were for his own use. We do not find his explanations credible. Why should a cigarette smoker buy only tobacco and no cigarettes at one of the cheapest places to buy cigarettes in the EU? Why should someone who has smoked cigarettes and who was changing over to smoking tobacco buy such a large quantity of tobacco? Why should someone who sometimes smokes tobacco hope that 200 pouches would last him 3 to 4 years but think that they will probably last 6 to 8 months when on his stated consumption they will last between 1.6 and 2.7 years. Why should he risk buying only tobacco for such a long period during which it might go stale? How could he afford the purchase? How did he obtain the cash? Why did he not know the cost of tobacco in the NAFFI if he sometimes smoked tobacco? Why did the Appellant and Mr Bramhall buy exactly the same amounts of the same goods? Did the Appellant really not know he had gone into Belgium? If the alcohol was for a party why was this not mentioned at interview and why has the explanation for the party changed? We did not hear any satisfactory explanations to these questions, and when giving evidence the Appellant was distinctly vague. In the light of these questions we do not consider that on the balance of probability the Appellant purchased the tobacco for his own use. Particularly the fact that he and Mr Bramhall bought identical quantities of the same goods strongly suggests that it is more probable that they had been given money to make the purchase by colleagues.
  4. Accordingly we do not find that there is anything unreasonable about the review decision and we dismiss the appeal.
J F AVERY JONES
CHAIRMAN

LON/03/8084

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