EXCISE DUTY - excise goods and car transporting goods seized at Dover on return to UK and forfeited - deemed review decision confirming decision not to restore vehicle - held on facts to be reasonable for Customs to conclude that vehicle should not be restored as goods apparently partly for re-sale at a profit - principle of proportionality inapplicable - appeal dismissed

MANCHESTER TRIBUNAL CENTRE

MICHAEL ALAN SYLVESTER Appellant

-and –

THE COMMISSIONERS OF CUSTOMS AND EXCISERespondents

Tribunal:Mr M S Johnson (Chairman)

Mrs E M MacLeod CIPM

Sitting in public in Birmingham on the 8th October 2003

The Appellant appeared in person

Mr I Speed, counsel instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2003

DECISION

  1. This appeal, brought pursuant to section 16 of the Finance Act 1994 (“the Act”), relates to a deemed review by the Commissioners of Customs and Excise (“Customs”) having the effect of confirming a decision by Customs dated 6 June 2001 not to restore a vehicle in which certain excise goods (“the goods”) were being carried, namely a Ford Mondeo, Registration No T317 BVA (“the vehicle”). The goods and the vehicle had been seized and forfeited by Customs.
  2. The goods consisted of the following:

6,600 cigarettes

17.75 kilogrammes of hand-rolling tobacco

110 cigarillos

4.2 litres of spirits.

  1. The goods and the vehicle were seized at Eastern Docks, Dover on 18 May 2001, when the appellant and two fellow travellers were re-entering the UK, having been to France and then Belgium to acquire the goods. The appellant’s companions were Mr James Jardine and Mr Walter Harper. Each of the three travellers claimed to be the owner of some part of the goods. However it is a particular feature of this appeal that some of the goods, that is to say 4,600 of the 6,600 cigarettes, went unclaimed by any of the travellers.
  2. The appellant represented himself at the hearing of the appeal. He was the only witness from whom we heard. He was cross-examined by Mr Speed, counsel appearing for Customs. We also had the benefit of a bundle of documents relevant to the appeal, assembled by Customs and passed to us by counsel. Included in the bundle are witness statements from Mr Gerry Dolan of Customs, relating to Customs’ policy as to the forfeiture and non-restoration of vehicles in cases of commercial smuggling, and Ms Helen Belinda Perkins, a reviewing officer of Customs, who belatedly reviewed the original decision not to restore in this case.
  3. The following are the facts as we find them to be.
  4. The appellant, Mr Jardine and Mr Harper, when asked by Customs at the port of entry, were suspiciously imprecise as to how much by way of excise goods they were each bringing into the UK.
  5. Customs accordingly opened the boot of the vehicle and discovered the goods.
  6. The three travellers were then interviewed jointly and separately by Customs.
  7. The appellant’s final position was that he had purchased 1,400 of the 6,600 cigarettes found in the boot of the vehicle and 50 pouches of hand-rolling tobacco. Mr Jardine ultimately claimed ownership of 600 cigarettes, 30 - 40 pouches of hand-rolling tobacco and a bottle of whisky. Mr Harper claimed no cigarettes, only some hand-rolling tobacco, 2 boxes of cigars, some brandy and some vodka.
  8. Customs seized the goods because they were in excess of the quantities specified in the schedule to the Excise Duties (Personal Reliefs) Order 1992 SI 1992/3155 (“the personal reliefs order”); not all the goods were initially declared; 4,600 of the cigarettes in the boot of the vehicle were not claimed by any of the three travellers; Mr Jardine had claimed to smoke two-thirds of a pouch of tobacco per day, which Customs found to be an excessive claim; and because the travellers appeared in total to be claiming more hand-rolling tobacco than the vehicle contained. No specific ground was assigned by Customs for seizing the vehicle, apart from the statement that Customs were not satisfied that the goods were for the travellers’ own use.
  9. On 21 May 2001, a letter was written to Customs by Miss Jayne Harper on behalf of Mr W Harper, Mr Harvey (sic) and the appellant. We find that the reference to “Mr Harvey” was meant as a reference to Mr Jardine. The letter indicated that the travellers did not believe that they were acting properly in bringing the goods into the UK, but it says that their intention in doing so was just to benefit themselves and their families. Be this as it may, the letter confined itself to requesting the restoration of the vehicle, not the goods – indeed the letter expressly stated that none of the travellers expected the goods to be returned. The letter ended as follows:

“ … under no circumstances was there an attempt to go against any rules, [the travellers] are guilty of ignorance. It is not always the best policy to tell the truth but in this case it is all the defence they have, that coupled with a deep regret and remorse”.

  1. In a nutshell, the letter appears to be admitting wrongdoing but denying the intention to evade duty.
  2. The letter advanced the following grounds for seeking the restoration of the vehicle:

“I have been asked by all parties to try and negate the seizure of the vehicle which belongs to [the appellant]. He himself cannot face his wife, children or his work colleagues at this moment in time as he feels totally stupid and inconsolable. The car had only been bought two months previously after several years of savings, and under no circumstances would he throw something so valuable away for gaining so little”.

  1. On 6 June 2001, Customs wrote back to Miss Harper declining to offer restoration of the vehicle for the reasons given in paragraph 10 above, and because the vehicle was used to carry and conceal the goods from Customs.
  2. On 15 June 2001, solicitors instructed for the appellant, Mander Cruickshank of 101 Belvoir Road, Coalville, wrote to Customs on his behalf denying the attempt to carry and conceal the goods in the vehicle. It was asserted that the appellant was not aware that the vehicle might be seized. The disastrous effect on the appellant of being without the vehicle was spelt out. The letter pointed out that the appellant, as a shift worker finishing at 1.30 am, had been left without transport between his work and his home. The vehicle was also needed to transport his wife to and from work and to collect and return their grandchild. The letter indicated that the vehicle was bought for £7,000, with a deposit of £2,000. It ended by requesting a review of the decision not to restore.
  3. The requested review was not carried out within the 45 days specified by section 15(2) of the Act, so that the decision contained in the letter from Customs dated 6 June 2001 is deemed to have been confirmed.
  4. In her witness statement, Ms Perkins says that she nevertheless carried out a review, completed on 13 February 2002. There is what appears to be an incomplete copy of the result of that review in the tribunal bundle – the first page is missing. The document nevertheless extends to 7 pages and appears to us to be reasonably comprehensive. It sets outs the background, what the author regards as the salient points of the interviews held with each of the travellers, the correspondence beginning with Miss Harper’s letter, the applicable legislation, Customs’ restoration policy with regard to vehicles, and ends with a consideration of the matters thought to be relevant to restoration or non-restoration in the present case. The conclusion was adverse to restoration.
  5. We have decided not to take into account Ms Perkins’s belated review in reaching our decision, firstly because the copy we have of the review document is incomplete, secondly because we have not heard from Ms Perkins in evidence, apart from reading her witness statement, and last but not least, because in the meantime the appeal in this matter had been lodged. That took place on or about 21 September 2001, at which time Mander Cruickshank were still acting on behalf of the appellant. In the event they did not represent him at the hearing.
  6. In giving his evidence, the appellant told the tribunal that it was not his intention to use the vehicle for smuggling. He did not know why such part of the goods as had not been purchased by him failed to correspond with the quantities of goods said by Mr Harper and Mr Jardine to belong to them. He was adamant that the part of the goods purchased by him was as stated to Customs. He told the tribunal that his companions had not told the truth to Customs. He had no idea why that was.
  7. The appellant told the tribunal that his companions were workmates of his. They had all decided to go and buy tobacco after finishing work. He said that that would “give the car a blow-out”. They therefore drove to Dover, crossed by ferry to Calais, and then went straight to Belgium to acquire the goods.
  8. The appellant claimed that he had bought his part of the goods separately to those of his companions, who had shopped independently to him. His part of the goods was in a carrier-bag; as he returned to the vehicle with the bag, he saw his companions loading their part of the goods into the boot of the vehicle. Pressed by Mr Speed in cross-examination about this account, the appellant nevertheless stuck to it.
  9. For Customs, Mr Speed submitted that the tribunal needed to be able to find that Customs had not acted reasonably in order for the tribunal to be in a position to allow the appeal. He referred to section 16(4) of the Act in that regard. He submitted that the grounds advanced in the decision letter dated 6 June 2001 were entirely reasonable.
  10. Mr Speed submitted that this was a case of apparent deceit. What Customs had experienced in this case were circumstances corresponding with their policy not to permit vehicles to be used for commercial smuggling. That being so, the ownership of the vehicle did not enter into the equation. If it had appeared that this was an innocent importation, that fact would have been taken into account and the vehicle restored. As it was, Mr Speed submitted, the non-restoration was entirely justified.
  11. The appellant submitted that it would be unjust for him to lose the vehicle. Smuggling was the last thing on his mind. He had invested his savings in the vehicle, and did not appreciate why he should lose it on account of the unexplained words and actions of his companions. The vehicle having now been disposed of by Customs, he wanted compensation on the basis that the vehicle should have been restored.
  12. In our opinion the appellant, in allowing the vehicle to be used for the trip undertaken by him and his workmates, took responsibility for ensuring that only excise goods for the travellers’ own use were carried in the vehicle. He could not “wash his hands” of the fact that the vehicle had been used for an illegal purpose, if such be the case. This was because he had volunteered to make the vehicle available – indeed, to be the driver of the expedition.
  13. It should have been apparent to the appellant that if commercial smuggling were indulged in by his companions, he might expect the vehicle to be seized. A case for restoration based upon his ignorance of the actions of his companions and the legal consequences was always most unlikely to succeed.
  14. The vehicle was directly implemented in the incontrovertible fact that goods were being carried in it that were not claimed by any of the travellers. It would therefore be impossible to conclude, in the case of the unclaimed goods, that they were for the personal use of any of the travellers. Yet the goods must have been bought by one or more of the travellers. The only reasonable conclusion was that they were for re-sale and not covered by the personal reliefs order.
  15. We therefore think that Customs properly concluded that there was deception and commercial smuggling going on in this case. We think that counsel for Customs was right to submit that it was reasonable for Customs to conclude that they were being misled as to which of the goods belonged to whom. In a case such as this, considerations as to whether the non-restoration of the vehicle is disproportionate would not in our view arise[1].
  16. Whilst some might sympathize with the appellant, we feel that he has reaped the just consequences of what he sowed by making the vehicle available in the first place. In case it be thought that this decision is harsh, we would emphasize that, as counsel submitted, the function of this tribunal is confined to intervening where we are satisfied that the original decision could not reasonably have been arrived at. In that regard, we do not feel that the reasons put forward by the appellant for requiring the vehicle (he did not add to what was mentioned in his solicitors’ letter to Customs dated 15 June 2001) are exceptional. We are not of the view that the decision of Customs would have been any different had those reasons been known about at the time.
  17. For the above reasons we do not consider that the original decision of Customs in this case is unsatisfactory. Within our terms of reference, we hold that the decision of Customs in this case is not one with which we can or should interfere. This appeal is therefore dismissed.
  18. No application was made for costs; accordingly none are awarded.

M S JOHNSON

CHAIRMAN

RELEASE DATE

MAN/01/8256

[1] (see Lindsay v C & E Comrs [2002] 3 All E R 118 at 137-8, per Lord Phillips MR).