EXCISE DUTY RESTORATION Vehicle and Tobacco Seized As Commercial Importation Appeal Dismissed

E00842

EXCISE DUTY — RESTORATION — vehicle and tobacco seized as commercial importation — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

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Tribunal: Richard Barlow (Chairman)

Gilian Pratt

Sitting in public in Manchester on 2 December 2004

The Appellant in person

Mr J Close of counsel instructed by the Solicitor for HM Customs and Excise for the Respondents

DECISION

This appeal is against the Commissioners review decision by which they confirmed their earlier refusal to restore to the Appellant a Saab motor car and 37 Kg of hand rolling tobacco originally seized from him at Coquelles on 17 August 2003.

Mr Close argued that the tribunal should only allow the Appellant to question the Commissioners’ opinion that the tobacco goods were for a commercial purpose if the Appellant could show a good reason, not amounting to an abuse of process, for doing so; as he had had the opportunity to require the Commissioners to commence condemnation proceedings but had withdrawn his notice. As we have reached a positive finding on the evidence against the Appellant on the issue as to whether the goods were for his own use, we do not propose to deal with this contention in detail except to say that, had it been necessary to do so, we would have held that the failure to pursue condemnation proceedings does not give rise to res judicata and whether or not it would amount to an abuse of process depends on the circumstances of the case. Fuller reasons for those holdings have been given in other tribunal decisions.

The Appellant and his friend Miss Littler had travelled to Belgium from Chesterfield on a day trip and Customs stopped them at Coquelles on their return. Between them they had 740 pouches of hand rolling tobacco which weighed 37 Kg and had cost £1,887, which Mr Hayball had paid in cash.

Mr Hayball was interviewed from 18.40 until 20.14 and we were shown a note book summarising the interview. Mr Hayball did not challenge the accuracy of that note when he gave evidence. Mr Hayball said that he had a net income of £750 to £900 on average per month but that his income in the previous two months had been £500 and between £500 and £600 “before tax”. He also said that he had been receiving incapacity benefit for about a year on and off until five months previously. In evidence Mr Hayball said that his income had been considerably higher than he had told the officer. He showed us some bank statements to support that contention and during July and he had paid £4,487 into the bank and had paid another £1,373 in on 5 August. These figures would support a contention that he could afford the £1,887 spent on tobacco which the figures given in interview would not. When asked about this by Mr Close he said that he did not want to say he earned too much because he did not want the officers to think he had money to burn as they would “take the car”.

Despite the large income in July 2003 Mr Hayball said in evidence that he had saved the £1,877 in bits and bobs and now stated that he had not been on incapacity benefit for long.

There was a contradiction in the interviews of Mr Hayball, who said he thought Miss Littler would pay him for her half share of the tobacco eventually, and her statement in interview that she would not pay him. Her income, stated to be £150 per week with outgoings of £97, would have been insufficient to enable her to save the £900 required in any reasonable period before the trip.

The evidence of income and expenditure and the fact that Mr Hayball lied about it certainly point to a commercial purpose in the importation. We regard it as significant both that he lied to the Customs officer who interviewed him and that his stated reason for the lies appeared to show knowledge of the possible consequences of the importation and a fear or even an expectation that the importation would be regarded as suspicious.

Had that been the only evidence it might not have been enough for a positive conclusion that the importation was commercial but Mr Hayball’s explanation for paying in cash was implausible. He said that was because he would not necessarily pay back the credit card debt if he had paid by that means, by which we understood him to mean that he would not trust himself to clear the debt. As his case was that he could afford the purchase we find that an implausible explanation. Customs and Excise suspect that cash payments are preferred for illicit commercial imports because it is then more difficult to prove earlier importations if they make enquiries later and we see a good deal of force in that.

Earlier trips to the Continent added to the evidence against Mr Hayball. He had actually travelled on 11 or 12 August, six days before the trip in question, and claimed he had forgotten to take the money with him so that the intended purchase of the tobacco did not take place then. He also admitted to several other trips including 6 and 12 May but had been evasive about them in interview. These were all supposed to be pleasure trips not involving the purchase of significant amounts of tobacco. Again, this evidence by itself would not have proved that the importation on the 17 August was for a commercial purpose but Chesterfield to the Continent is a very long journey to make as a day trip and the Appellant’s evasiveness when questioned leads strongly to an inference that there must have been more to those trips than stated.

The Appellant was represented by a firm of solicitors at one stage and they stated in a letter, no doubt on instructions, that the Appellant could not afford to replace the car although it emerged in evidence that he had in fact already done so, though he said he had borrowed the money from his mother.

The tobacco would have lasted the Appellant a considerable time even allowing for the extraordinarily large consumption he claimed. That fact is also significant

Taking all the evidence together and having observed the manner in which the Appellant gave his evidence we have reached the conclusion that he imported the tobacco for a commercial purpose i.e. resale at a profit. In those circumstances we hold that the Commissioners’ decision not to restore the car and the tobacco was entirely reasonable and we dismiss the appeal.

Mr Close sought an award of costs given the circumstances, but we do not regard this case as one which falls within the categories of cases where an award should be made, bearing in mind the statement given in Parliament about the categories of case where the Commissioners would seek and award.

RICHARD BARLOW

CHAIRMAN
Release Date: 21 January 2005

MAN/04/8031