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You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Amin v Customs and Excise [2003] UKVAT(Excise) E00393 (14 March 2003) URL: https://www.bailii.org/uk/cases/UKVAT/Excise/2003/E00393.html Cite as: [2003] UKVAT(Excise) E00393, [2003] UKVAT(Excise) E393 |
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E00393
Excise Duties Non-restoration of seized goods and vehicle Alcohol brought in in excess guidelines Appellant not native English speaker Wrong burden of proof applied by seizing and reviewing officers No account taken of language difficulties or cultural differences
Procedure Second review letter written No application made to tribunal No request from Appellant Letter not admitted
LONDON TRIBUNAL CENTRE
MRS S AMIN Appellant
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: MISS J C GORT (Chairman)
MRS R RUDD
MR A McLOUGHLIN
Sitting in public in London on 16 January 2003
Miss Z Amin, the Appellant's daughter, for the Appellant
Miss Z Taylor of counsel, for the Respondents
© CROWN COPYRIGHT 2003
DECISION
The background
The review letter
"It is for me to determine whether the contested decision in one which a reasonable body of commissioners could not have reached. Before considering the issue of restoration I have first to examine whether or not the goods were properly seized. That seizure was contingent upon your being able to demonstrate that the goods were for your own use and not for any commercial purpose."
"I note from the answers given by you at interview and in your subsequent letter that the excise goods were for your daughter's engagement party. Moreover, you also say that you had been frequently travelling to France to buy food for the same occasion. It would appear from the vast numbers you had intended to invite, that the party was to be a significant event. I have to say that I find it beyond comprehension that you had gone to all this trouble without having first invited or even mentioned it to any one of the intended 250 guests. Neither do I believe that it would be reasonable not to have made any arrangements for hiring a marquee just seven days before such a grand occasion."
"In the continuing absence of any evidence that the goods were not for a commercial purpose I am satisfied that the refusal to restore them was in line with the policy.
"Similarly, the Commissioners do not accept hardship as appropriate grounds for the restoration of a vehicle."
"I consider that the decisions are not ones which a reasonable body of commissioners could not have reached."
The law
Relief from duty of excise cross-border shopping
Subject to the provisions of this Order a community traveller entering the United Kingdom shall be relieved from payment of any duty on excise goods which he has obtained for his own use in the course of cross-border shopping and which he has transported.
Relief from duty of excise conditions Shuttle train goods
3A-(1) In relation to shuttle train goods, this article shall have effect for the purpose of determining whether relief has been treated as having been afforded under article 3 above.
(2) No relief shall be treated as having been afforded if the goods are held for a commercial purpose.
(3) Where the shuttle train goods exceed any of the quantity shown in the Schedule to this Order the Commissioners may require the person holding the goods to satisfy them that the goods are not held for a commercial purpose.
(4) In determining whether or not any person holds shuttle train goods for a commercial purpose regard should be taken of the facts as listed in subparagraphs (a)-(j) of Article 5(2) below.
(5) If a person holding the goods is required so to do but fails to satisfy the Commissioners that he does not hold them for a commercial purpose, it shall be presumed that the goods are held for a commercial purpose.
(6) Where the person holding the goods fails to satisfy the Commissioners that he does not hold them for a commercial purpose, the purpose of any proceedings instituted in accordance with paragraph 8 of Schedule 3 to the Customs and Excise Management Act 1979 or any appeal under section 16 of the Finance Act 1994, his failure should cause the goods to be treated as "goods held for a commercial purpose" and accordingly section 154(2) of the Customs and Excise Management Act 1979 shall apply.
5. Relief from duty of excise conditions
(3) The reliefs afforded under this Order are subject to the condition that the excise goods in question are not held for use for [a commercial purpose] whether by the community traveller who imported them or by some other person who has possession or control of them; and if that condition is not complied with in relation to any excise goods, those goods shall, without prejudice to article 6 below, be liable to forfeiture.
(4) [In determining whether or not the condition imposed in paragraph (1) above has been complied with], regard shall be taken of
(a) his reasons for having possession or control of those goods;
(b) whether or not he is a revenue trader;
(c) his conduct in relation to those goods and for the purposes of this sub-paragraph, conduct includes his intentions at any time in relation to those goods;
(d) the location of the goods;
(e) the mode of transport used to convey those goods;
(f) any document or other information whatsoever relating to those goods;
(g) the nature of those goods including the nature and condition of any package or container;
(h) the quantity of those goods;
(i) whether he has personally financed the purchase of those goods;
(j) other circumstances which appears to be relevant.
Article 8
As regards products required by private individuals for their own use and transported by them, the principle governing the internal market lays down that excise duty shall be charged in the Member State in which they are acquired.
Article 9
- Without prejudice to article 6, 7 and 8, excise duty shall become chargeable where products for consumption in a Member State are held for commercial purposes in another Member State.
In this case, the duty shall be due in the Member State in whose territory the products are and should become chargeable to the holder of the products.
- To establish that the products referred to in article 8 are intended for commercial purposes, Member States must take account, inter alia, of the following:
- the commercial status of the holder of the products and his reasons for holding them,
- the place where the products are located or, if appropriate, the mode of transport used,
- any document relating to the products,
- the nature of the products,
- the quantity of the products.
"Where any thing has become liable to forfeiture under the Customs and Excise Act any vehicle which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture shall also be liable to forfeiture."
"Any thing liable to forfeiture under the Customs and Excise Acts may be seized or detained by any officer "
The evidence
"1. Frequent travellers
2. Party not yet organised
3. Over M.I.L.S.
4. Evidence of frequent travel
5. Vague and evasive
6. Inconsistent stories
7. Income incommensurate with amount spent"
The Respondents' case
"As a matter of strict law we consider that claimants' contentions are correct. Whether this will make much difference as a matter of practice is open to question. After all, as Lord Woolf pointed out in Goldsmith no one is in a better position to know whether the goods are to be used for private or commercial purposes and the person in possession of them and if Customs officers do not believe him, there is in practical terms not much difference between his failing to satisfy them that they are not being held for his own use (the PRO test) and them being satisfied that they are being held for 'commercial' use (the test under the directive). In a borderline case, however, the location of the burden of proof may well make a difference."
" the court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The search for this balance is inherent in the whole of the convention and is also reflected in the structure of article 1."
The Appellant's case
(i) Any evidence of previous smuggling or failure to comply with legal requirements
(ii) Any evidence that the person involved knew what they were doing was wrong
(iii) Any evidence that the person was paid to make the journey
(iv) Large quantities of goods which might damage legitimate trade and
(v) Any evidence that the goods were for a commercial purpose.
It was claimed that none of those factors had been breached and the Respondents had no evidence to prove otherwise. The wrong burden of proof was relied on by the Respondents, it being expected that the Appellant would prove that there had been an engagement party. The fact that the party had not been planned in detail did not mean there was not to be a party. The Customs had taken the point that because she had an excess amount of alcohol therefore the use was commercial and it was for her to prove that it was not.
Reasons for decision
"She offered no elaboration except to say that the loss of the vehicle was causing her hardship. With the continuing absence of any evidence that the goods were not for a commercial purpose I was satisfied that the refusal to restore them was in line with the policy."
MISS J C GORT
CHAIRMAN
RELEASED: 14 March 2003
LON/01/8063