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You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Day & Anor v Revenue & Customs [2006] UKVAT(Excise) E00999 (09 November 2006) URL: https://www.bailii.org/uk/cases/UKVAT/Excise/2006/E00999.html Cite as: [2006] UKVAT(Excise) E999, [2006] UKVAT(Excise) E00999 |
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E00999
EXCISE DUTY importation of 31.5 kilograms of tobacco seizure of tobacco and vehicle used to carry it owners of vehicle challenging lawfulness of seizure condemnation proceedings commenced but later withdrawn owners seeking restoration of vehicle importation of tobacco deemed unlawful by para 5 sch 3 CEMA 1970 whether Commissioners refusal to restore vehicle unreasonable no appeal dismissed
MANCHESTER TRIBUNAL CENTRE
TINA AND ROBERT DAY Appellant
- and -
THE COMMISSIONERS FOR
HER MAJESTY'S REVENUE AND CUSTOMS Respondents
Tribunal: David Demack (Chairman)
Mrs Mary Ainsworth (Member)
Sitting in Manchester on 19 October 2006
The Appellants appeared in person
Jennifer Blewitt of Counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents
© CROWN COPYRIGHT 2006
DECISION
"I must also inform you that should the Court decide that the things should be condemned as liable to fortfeiture, HMRC normally ask for a contribution towards the costs to be awarded which are likely to be not less than £1,500 each."
"As you have withdrawn your challenge to the legality of the seizure the goods are confirmed as held in the UK for a commercial purpose and they, along with the vehicle are condemned as forfeit to the Crown by the passage of time under paragraph 5 of schedule 3 of CEMA."
"Aggravated cases depend on how many aggravated offences have occurred within the previous 12 months:
- For a first aggravated detection vehicles will normally be seized and restored for 100% of the revenue involved
- The 100% 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 "
(1) that they disclosed having only 25 kilograms of tobacco when they had 31.5 kilograms, saying that they had failed to disclose all their goods, and thus had misled HMRC as to their true quantity. On that ground alone, Mrs Gillespie stated that she had "good reason to doubt your credibility. Furthermore, as you were carrying receipts for the full quantity, you clearly knew that you were misleading the officer."
(2) that the tobacco imported was commercial in quantity.
(3) that Mr Day's claim that the tobacco would last 8 to 12 months was based on his estimate of obtaining 30-40 cigarettes per pouch of tobacco, whereas on HMRC's estimate of 80-100 cigarettes being obtained, the tobacco would last about 3 years. Given that tobacco had a shelf life of around 12 months, Mrs Gillespie concluded that the majority of it would have gone stale before consumption.
(4) that there were discrepancies between Mr and Mrs Day's statements as to the number and frequency of their visits to the continent to purchase tobacco, and they were unable to remember the registration number of the vehicle in which they had travelled previously. From that evidence, Mrs Gillespie concluded that their declared tobacco consumption rates were "implausible", and that in failing to disclose the vehicle's registration number, they were attempting to prevent HMRC ascertaining their true frequency of travel
(5) that storage of 31.5 kilograms of tobacco would present problems in a mobile home.
(6) that a cash purchase of such magnitude incurred "the inconvenience and risks of carrying a large amount of cash". Not for profit purchases were often made for cash, and it was a common feature of excise goods purchases made for commercial sale. Further, some travellers made cash purchases in order to avoid the creation of evidence in the form of credit card and bank statements.
(7) that the only reason they had given for disapplying HMRC's policy was that the tobacco was purchased for their own use: that was a matter for the Magistrates' Court, and not a reason for restoration.
"In my opinion the goods, or most of them, were in fact to be sold for profit and the vehicle should not therefore be restored, regardless of its value. In coming to this conclusion I placed particular importance on your dishonesty in failing to declare all of the excise goods; the frequency of travel; and the discrepancies in your accounts".
"For first offences involving small quantities of excise goods the Commissioners' policy is to consider restoring vehicles. However, because 31.5 kilos of tobacco does not qualify as a small quantity, I have not applied the provision".
"If, on the expiration of [one month of the date of the notice of seizure or, where no such notice has been served on [the person whose offence or suspected offence occasioned the seizure], within one month of the date of the seizure], or if, in the case of any such notice given, any requirement of paragraph 4 is not complied with, the thing in question shall be deemed to have been duly condemned as forfeited."
a) to direct that the decision shall cease to have effect;
b) to direct HMRC, in accordance with the tribunal directions, to conduct a further review of the original decision;
c) in the case of a decision that has already been acted on, to declare it unreasonable and give directions to HMRC for the avoidance of a repetition of the unreasonableness"
"I do not think it can have been intended that the importer before the tribunal would have a second bite at the cherry of lawfulness having failed in the condemnation proceedings or let them go by default."
"20. Just pausing there, what Lord Justice Buxton is saying is not enough is the mere fact that the applicant has not applied to the Commissioners, requiring them to invoke condemnation proceedings. Not enough for what ? Well, clearly, in my view, not enough to enable the tribunal to reopen the question or, indeed, open the question for the first time. There must, therefore, be something more than a failure on the part of the applicant to invoke condemnation proceedings before the tribunal is empowered to question the legality of the forfeiture."
"22. It is, in my judgment, clear that in therun of the mill case where there has been a failure to give a paragraph 3 notice invoking the condemnation proceedings the deeming provision will operate against the applicant in any subsequent appeal to the tribunal. The tribunal's function, therefore, is analogous to a sentencing court once a defendant has been convicted. No matter that the defendant still protests his innocence of the charge against him, the function of a sentencing court is to accept mitigation but not to question the original conviction."
DAVID DEMACK
CHAIRMAN
Release Date: 9 November 2006
MAN/06/8017