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You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Customs) Decisions >> Della Corporation Ltd v Revenue & Customs [2007] UKVAT(Customs) C00231 (12 January 2007) URL: http://www.bailii.org/uk/cases/UKVAT/Customs/2007/C00231.html Cite as: [2007] UKVAT(Customs) C231, [2007] UKVAT(Customs) C00231

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Della Corporation Ltd v Revenue & Customs [2007] UKVAT(Customs) C00232 (10 January 2007)

C00231

CUSTOMS DUTY – Were formalities for preferential rate complied with? – No – Was the duty to be remitted under Articles 220 or 239 of the Code? – No in the particular circumstances as no error by the Customs Authority or 'special situation'– appeal dismissed

LONDON TRIBUNAL CENTRE LON/2005/7007

DELLA CORPORATION LIMITED Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY'S

REVENUE AND CUSTOMS Respondents

Tribunal: ADRIAN SHIPWRIGHT (Chairman)

RAY BATTERSBY

Sitting in public in London on 13 and 14 November 2006

Mr J Rashid, Chartered Accountant of Ahmed Aslam & Co, for the Appellant

Mr J Maxwell-Scott, Advocate of the Solicitor's Office of HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2006

DECISION

Introduction

1. This is an appeal against a decision on review by the Respondents ("HMRC") to uphold a C18 Post Clearance Demand Note for £91,042.61 issued on 11 February 2005. The decision appealed against is contained in a letter from HMRC to the Appellant ("the Company") dated 11 February 2005.

The Issue

2. The issue in this case is essentially whether the six consignments of sugar in question were liable to duty at the full rate or a nil rate under the preference arrangements for sugar from India.
3. This raises a number of questions including the following:

(a) What were the requirements under the Regulations?

(b) Were these requirements met?

(c) Was there Official Error?

(d) If there was, what is its effect in the light of Invicta Poultry?

The Law

4. The Law in so far as is relevant is found in Commission Regulation (EEC) No 2782/76 ("Old Rules") replaced in July 2003 by Commission regulation (EC) No. 1159/2003 ("New Rules").
5. The procedure under the Old Rules was found in Commission Regulation (EEC) No 2782/76. Article 7 reads:

"1. For the purposes of this Regulation preferential sugar originating in India is sugar for which evidence of such origin has been given by the production of a certificate of origin fulfilling the conditions laid down in Article 9 of Regulation (EEC) No 802/68.

2. The importer of preferential sugar originating in India shall, in addition, submit to the customs authorities of the Community a voucher duly endorsed by the competent authority of India.

This voucher shall:

— bear one of the following endorsements:

'Regulation (EEC) No 2782/76 refers',

'Application du règlement (CEE) no 2782/76',

'Anwendung von Verordnung (EWG) Nr. 2782/76',

'Applicazione del regolamento (CEE) n. 2782/76',

'Toepassing van Verordening (EEG) nr. 2782/76',

'Anvendelse af forordning (EØF) nr. 2782/76',

'?fa?µ??? ?a????sµ?? (???) a???. 2782/76',

'Aplicación del Reglamento (CEE) no (SIC! no) 2782/76',

'Aplicaçao (SIC! Aplicação) do Regulamento (CEE) no (SIC! no)

2782/76';

— indicate the date of shipment of the goods and the relevant delivery period as defined for the purposes of the undertakings given in respect of preferential sugar. The stated delivery period shall not, however, affect the validity, at the time of importation, of the certificate of origin referred to in paragraph 1;

— indicate the subheading in the Common Customs Tariff of the goods in question.

3. Copies, supplied by the persons concerned, of the vouchers referred to in paragraph 2, and where appropriate of the declarations referred to in the second subparagraph of Article 1 (3), shall be forwarded by Member States to the Commission in accordance with the relevant provisions of Regulation (EEC) No 955/70.

The competent authorities of the Member States shall insert on copies of vouchers:

— the date, as ascertained from the relevant shipping document, on which the loading of the sugar was completed in the port of exportation;

— one of the dates referred to in the first subparagraph of Article 1 (2);

— particulars of the importation concerned and the tel quel quantities actually imported."

6. This was supplemented by Commission Regulation (EEC) No 1464/95. Article 7 of which reads:

"In respect of preferential sugar to be imported into the Community in accordance with Commission Regulation (EEC) No 2782/76 (1), the licence application and the licence shall contain:

— in Section 20 at least one of the following indications:

— azúcar preferencial [Reglamento (CEE) no 2782/76]

1995R1464 — EN — 01.10.1995 — 001.001 — 5

— præferencesukker (forordning (EØF) nr. 2782/76)

— Präferenzzucker (Verordnung (EWG) Nr. 2782/76)

— p?_t?µ?s?a?_ !#/a?? [?a?_??sµ_? (?*?) a???. 2782/76]

— Preferential sugar (Regulation (EEC) No 2782/76)

— sucre préférentiel [règlement (CEE) no 2782/76]

— zucchero preferenziale [regolamento (CEE) n. 2782/76]

— preferentiële suiker (Verordening (EEG) nr. 2782/76)

— açúcar preferencial [Regulamento (CEE) no 2782/76]

— förmånssocker (förordning (EEG) nr 2782/76)

— etuuskohtelun alainen sokeri [asetus (ETY) N:o 2782/76];

— in Section 8, the name of the country of origin of the product.

The issue of an import licence shall make it obligatory to import in accordance with Regulation (EEC) No 2782/76 from the country specified in the licence".

7. The procedure under the New Ruleswas contained in Commission Regulation (EEC) No 1159/2003 which repealed the old rules. Article 13 reads:

"Article 13

Import licence applications and licences shall contain the following entries:

(a) in box 8: the country of origin (a country covered by the ACP Protocol, or India);

(b) in boxes 17 and 18: the quantity of sugar expressed as white sugar equivalent;

(c) in box 20, at least one of the following entries:

- Aplicación del Reglamento (CE) n° 1159/2003, n° ... (azúcar preferente ACP-India: n° 09.4321)

- Anvendelse af forordning (EF) nr. 1159/2003, nr. ... (præferencesukker AVS Indien: nr. 09.4321)

- Anwendung der Verordnung (EG) Nr. 1159/2003, Nr. ... (Präferenzzucker AKP Indien: Nr. 09.4321)

- ?fa?µ??? t?? ?a????sµ?? (??) a???. 1159/2003, a???. ... (p??t?µ?s?a?? ???a?? ???-??d?a: a???. 09.4321)

- Application of Regulation (EC) No 1159/2003, No ... (ACP-India preferential sugar: No 09.4321)

- Application du règlement (CE) n° 1159/2003, n° ... (sucre préférentiel ACP Inde: n° 09.4321)

- Applicazione del regolamento (CE) n. 1159/2003, n. ... (zucchero preferenziale ACP-India: n. 09.4321)

- Toepassing van Verordening (EG) nr. 1159/2003, nr. ... (preferentiële suiker ACS-India: nr. 09.4321)

- Aplicação do Regulamento (CE) n.o 1159/2003, n.o ... (açúcar preferencial ACP Índia: n° 09.4321)

- Asetuksen (EY) N:o 1159/2003 soveltaminen, nro ... (etuuskohteluun oikeutettu AKT-Intia-sokeri: nro 09.4321)

- Tillämpning av förordning (EG) nr 1159/2003, nr ... (förmånssocker AVS-Indien: nr 09.4321)

Notwithstanding Article 18(1) of Regulation (EC) No 1291/2000, import licences containing in boxes 15 and 16 the description and CN code 1701 99 10 may be used, where appropriate, for imports of sugar covered by CN code 1701 11 90.

8. It is further provided in Article 15:

"1. For the purposes of this Title, all ACP-India preferential sugar whose origin is determined in accordance with the provisions in force in the Community and for which proof of origin is furnished in the form of a certificate of origin issued in accordance with Article 47 of Regulation (EEC) No 2454/93, shall be considered as originating in India.

2. A supplementary document shall be presented, bearing:

(a) at least one of the following entries:

- Aplicación del Reglamento (CE) n° 1159/2003, n° ... (azúcar preferente ACP-India: n° 09.4321)

- Anvendelse af forordning (EF) nr. 1159/2003, nr. ... (præferencesukker AVS-Indien: nr. 09.4321)

- Anwendung der Verordnung (EG) Nr. 1159/2003, Nr. ... (Präferenzzucker AKP-Indien: Nr. 09.4321)

- ?fa?µ??? t?? ?a????sµ?? (??) a???. 1159/2003, a???. ... (p??t?µ?s?a?? ???a?? ???-??d?a: a???. 09.4321)

- Application of Regulation (EC) No 1159/2003, No ... (ACP-India preferential sugar: No 09.4321)

- Application du règlement (CE) n° 1159/2003, n° ... (sucre préférentiel ACP-Inde: n° 09.4321)

- Applicazione del regolamento (CE) n. 1159/2003, n. ... (zucchero preferenziale ACP-India: n. 09.4321)

- Toepassing van Verordening (EG) nr. 1159/2003, nr. ... (preferentiële suiker ACS-India: nr. 09.4321)

- Aplicação do Regulamento (CE) n.o 1159/2003, n.o ... (açúcar preferencial ACP-Índia: n.o 09.4321)

- Asetuksen (EY) N:o 1159/2003 soveltaminen, nro ... (etuuskohteluun oikeutettu AKT Intia-sokeri: nro 09.4321)

- Tillämpning av förordning (EG) nr 1159/2003, nr ... (förmånssocker AVS-Indien: nr 09.4321)

(b) the date of embarkation of the goods and the delivery period concerned, the period shown having no impact on the validity, upon import, of the certificate of origin;

(c) the CN subheading for the product concerned.

3. The certificate of origin and the supplementary document containing the description of sugar covered by CN code 1701 99 may be used, where appropriate, for imports of sugar covered by CN code 1701 11.

4. The party concerned shall provide the competent authority in the Member State of release for free circulation, for control purposes as required, with a copy of the supplementary document referred to in paragraph 2 containing:

(a) the date, established on the basis of the appropriate shipping document, on which loading of the sugar at the port of exportation in India was completed;

(b) the date referred to in Article 10(1);

(c) information relating to the import operation, in particular the degree of polarisation indicated, and the quantities of raw sugar actually imported".

9. Article 220 Community Customs Code ("CCC") provides:

"Article 220

1. Where the amount of duty resulting from a customs debt has not been entered in the accounts in accordance with Articles 218 and 219 or has been entered in the accounts at a level lower than the amount legally owed, the amount of duty to be recovered or which remains to be recovered shall be entered in the accounts within two days of the date on which the customs authorities become aware of the situation and are in a position to calculate the amount legally owed and to determine the debtor (subsequent entry in the accounts). That time limit may be extended in accordance with Article 219.

2. Except in the cases referred to in the second and third subparagraphs of Article 217 (1), subsequent entry in the accounts shall notoccur where:

(a) the original decision not to enter duty in the accounts or to enter it in the accounts at a figure less than the amount of duty legally owed was taken on the basis of general provisions invalidated at a later date by a court decision;

(b) the amount of duty legally owed was not entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration.

Where the preferential status of the goods is established on the basis of a system of administrative cooperation involving the authorities of a third country, the issue of a certificate by those authorities, should it prove to be incorrect, shall constitute an error which could not reasonably have been detected within the meaning of the first subparagraph.

The issue of an incorrect certificate shall not, however, constitute an error where the certificate is based on an incorrect account of the facts provided by the exporter, except where, in particular, it is evident that the issuing authorities were aware or should have been aware that the goods did not satisfy the conditions laid down for entitlement to the preferential treatment.

The person liable may plead good faith when he can demonstrate that, during the period of the trading operations concerned, he has taken due care to ensure that all the conditions for the preferential treatment have been fulfilled.

The person liable may not, however, plead good faith if the European Commission has published a notice in the Official Journal of the European Communities, stating that there are grounds for doubt concerning the proper application of the preferential arrangements by the beneficiary country;

(c) the provisions adopted in accordance with the committee procedure exempt the customs authority from the subsequent entry in the accounts of amounts of duty less than a certain figure".

10. It is further provided by the CCC:

"Article 239

1. Import duties or export duties may be repaid or remitted in situations other than those referred to in Articles 236, 237 and 238:

— to be determined in accordance with the procedure of the committee;

— resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the committee procedure. Repayment or remission may be made subject to special conditions.

2. Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office within 12 months from the date on which the amount of the duties was communicated to the debtor. However, the customs authorities may permit this period to be exceeded in duly justified exceptional cases".

The Authorities

11. We were provided with copies of the following authorities which we have read and considered:

CCE v Invicta Poultry [1998] EWCA 775

Impex v CCE LON/97/7088

Viva Mexico v CCE COO130

The Evidence

12. An agreed bundle of documents was produced. No objection was taken to any of the documents and they were all admitted in evidence. We were also provided with further copies of certain documents in the bundle at the hearing. We asked to see the original applications and related documents. Such of the documents received by fax by the Rural Payments Agency as were available were produced to us.
13. Steve Palmer, the HMRC review officer and Marcia Maurice, the HMRC case officer gave evidence. Witness statements were provided for each of them and stood as their evidence in chief. They gave further oral evidence and were cross examined.
14. We note that Mr Palmer said in his witness statement that as he had never worked in an entry processing unit he had no first hand knowledge of processing the relevant forms.
15. It was accepted on the Appellants' behalf (as it had to be) that the paper work provided at the time of entry was not correct as a matter of law. It did not have the endorsements required under the relevant rules.

Findings of Fact

16. From the evidence we make the following findings of facts:

The Company

a. The Company is a limited liability company incorporated in England.

b. The directors, it was emphasised, were not educated to graduate level. This was urged on us by the Appellant as being important and so we duly record it. Mr Harry Chariaou, one of the directors produced a sworn affidavit to this effect which was admitted in evidence.

The Company's Business

c. The Company's business includes trading as a general importer of wholesale goods.

d. The Company's website describes it as "a market leader" and "a recognised

e. pioneer within the global trade sector". It also refers to its experience as an importer and mentions sugar from the Sub Continent and Brazil.

The Six Consignments

f. The six consignments in question were as follows:

Entry no.	Date of entry	GSP cert	Origin cert	Exporter	Bundle ref
071 029153N	22/07/03	EI 10817107		Sri Easan Logistic
071 027602L	22/12/03	EI 1124229	598063	SBEC Sugar Ltd
071 017198E	13/01/04	EI 10878482	604118	SBEC Sugar Ltd
071 028812A	23/02/04	EI 11352606	608762	SBEC Sugar Ltd
071 010344t	07/04/04	EI 11684043	620444	SBEC Sugar Ltd
071 025586J	19/05/04	EI 11694816	623978	SBEC Sugar Ltd

g. The goods in each consignment were declared as benefiting from a nil rate of duty under the preference arrangements for sugar from India.

h. It was common ground that as a matter of law the paperwork provided to HMRC did not meet the requirements for reduction of the rate of duty to nil under the Old Rules (insofar as applicable to the supply of Indian and Brazilian sugar) or under the New Rules. The appropriate Rural Payments Agency licence and supplementary documents were lacking. We find this as a primary fact.

i. These consignments straddle a change in the legislation as noted above. The first consignment fell within the Old Rules and the rest within the New Rules.

The Telephone Inquiries

j. The Appellants made more than 60 telephone enquiries to HMRC helplines in the period in question and before concerning the importation of various goods (including sugar) into the UK.

k. We were provided with the log entries made by HMRC officials. There were no notes etc produced from the Company. There was nothing in these log entries that was inconsistent with the view being taken by HMRC in these proceedings. There was no evidence of official error in these notes or in anything produced by way of evidence.

The Correspondence

l. The Company made a number of written enquiries of HMRC. They included the following.

m. On 20 May 2002 an inquiry was made concerning the import of sugar from India.. HRC replied on 11 June 2002 asking for the relevant commodity code.

n. This was provided in a telephone conversation. In a letter from HMRC dated 17 June 2002 reference was made to EC Preferences and the need for a completed EUR 1 movement certificate duly endorsed by the requisite Indian authorities.

o. Inquiry as to the type of licence needed was sent by the Company on 25 July 2002. The reply referred to the need for a GSP Form A duly endorsed by the Government Trade authorities in India. It was also said that a CAP Licence may be required.

Other Inquiries by the Company

p. Directors of the Appellant visited India to meet the agent and discuss what documents were needed. The agent subsequently changed.

q. We were told that there was a consultation with a solicitor a part of the Company's enquiries. We accept this took place.

r. Visits were also made to Felixstowe to talk to HMRC officers by the directors.

The Entry and Verification

s. The entries were what were described as Route 1 entries. This meant that the goods and the documents were physically seen by HMRC. HMRC having seen the goods and documents let the sugar in without demanding duty.

HMRC Database

t. We asked what the HMRC Database would have shown as to Preference at the relevant time. We were informed that by 31 July 2003 a note referring to the new regulation would have been on the Database.

Summary

17. In summary we find as primary facts:

(a) Six consignments of sugar were imported;

(b) The paperwork did not meet the requirements for the nil rate of duty under the Preference arrangements;

(c) The Appellant had made extensive enquiries as to how to get this right;

(d) HMRC allowed the goods in without demanding duty. The Appellants assumed this meant that the sugar attracted the nil rate.

(e) HMC subsequently demanded the duty on the basis that the documents did not meet the conditions for Preference.

The Submissions of the Parties

The Appellant Submissions in outline

18. In essence, the Appellant submitted that:

(a) The directors of the Company were not University educated persons who could be expected to know all the requirements of European and UK Law concerning the import of sugar;

(b) They therefore made inquiries of the relevant Government Departments, visited India and did all they could reasonably be expected to do to "get it right";

(c) They relied on what they had been told and produced the documents in accordance with what the Government Department had told them;

(d) What they had been told was wrong so that here there was a case of "Official Error";

(e) The Customs let the sugar in six times without duty which was a further case of official error.

(f) Newcomers to the business should not be deemed to know the Official Journal.

(g) The Respondent's errors should not be visited on the Company which had done all it could reasonably be expected to do to comply with the legal requirements. What more could they have done?

(h) Accordingly, the appeal should be allowed.

HMRC's Submissions in outline

19. In essence, HMRC submitted that the Preference was not available as the documentation did not meet the requirements to qualify for the relief.
20. In more detail, it was argued:

(a) The documentation relating to the first consignment did not include the right endorsements on the documents as required by Article 7.

(b) The documentation relating to consignments two to six used the old documentation (GSP Form A) rather than the document required by the New Rules (EUR 1) supported by a "Supplementary Document". There was no Supplementary document.

(c) Further the requirements for both the Old Rules and the New Rules as to the completion of box 20 had not been complied with as required by the Regulations.

(d) Accordingly, there was no entitlement to the preferential rate.

(e) There was no official error here. The Company had not shown this to be the case by evidence. Even if there was (which is not admitted) then it did not block the obligation to the pay the duty.

(f) Reliance cannot be placed on telephone inquiries see Viva Mexico.

(g) The correspondence did not show error because it gave the correct advice.

(h) Invicta Poultry shows that as a matter of English and European Law (if different) every trader is deemed to know the contents of the Official Journal.

(i) If there were any misdirection it could have been easily discovered by an attentive reading of the Official Journal. Article 220 was not engaged.

(j) The appeal should therefore be dismissed.

Discussion

Introduction

21. The approach we adopt is to consider the issue whether the six consignments of sugar in question were liable to duty at the full rate or a nil rate under the preference arrangements for sugar from India is to consider the following questions.

(a) What were the requirements under the Regulations?

(b) Were these requirements met?

(c) Was there Official Error?

(d) If there was, what is its effect in the light of Invicta Poultry?

We will deal with each question in turn.

What were the requirements under the Regulations?

22. The requirements under both the Old and New Procedures were that licences were needed. Application had to be made to the Rural Payments Agency.
23. Under the Old Rules a certificate of origin, a duly endorsed voucher and the correct endorsement in Box 20 of the Application and Licence were amongst the necessary conditions.
24. Under the New Rules the Licence and Application had to have the requisite endorsements in boxes 8 and 20. A certificate of origin and a voucher with the requisite endorsements was also needed.

Were these requirements met?

25. On the evidence produced to us the requirements for Preference specified in the Regulations were not fulfilled. We find as a primary fact that the requirements for Preference were not met.
26. Where the Old Rules applied there was no duly endorsed voucher and no endorsements in Box 20 of the Application and Licence. Accordingly, the requirements where the Old Rules applied were not met.
27. Where the New Rules applied the Licence and Application did not have the requisite endorsements in boxes 8 and 20 nor was there the right certificate of origin and a voucher with the requisite endorsements.

Was there Official Error?

28. There is no evidence of Official Error on the evidence lead. The many inquires both in writing, in person and on the telephone show the due care the Appellant sought to take. We have no doubt that the Appellant wanted to get it right. However, there is no evidence that HMRC gave wrong advice or misled the Appellant. Even if there evidence of this by reference to telephone inquires Viva Mexico would not allow reliance on it.
29. The Chairman (Mr Wallace) said in Viva Mexico:

"41. As to Mr Jordan's first point, that the incorrect entry resulted from an error by Customs, while I am satisfied that Mr Jordan is wholly honest in believing that he was misled, I am quite unable to accept that he gave sufficiently detailed information to the lady on the telephone for it to be possible properly to categorise her action in circling codes as an error, even assuming that the conversation lasted longer than the 5 minutes which he stated. If her attempt to assist him was to be described as "official error", it would be a major disincentive to Customs to give guidance without receiving very detailed information in writing. More important, virtually all of the demand was based on the final four figures being the agricultural component which were not provided by the lady at Croydon at all. This was not pointed out to me during either hearing.

42. It follows that the interpretation of Article 220.2(b) of the Community Customs Code considered in Covita and in Customs and Excise Commissioners v Invicta Poultry Ltd and Fareway Trading Ltd [1998] V&DR 128 was not in the event relevant. In the present case if any error was not easily detectable to an attentive reader of the Official Journal, it is impossible to see how Customs could have been expected to give an answer on such limited information on the telephone in only five minutes".

These comments are equally applicable here.

30. This was a Route 1 entry and it is unfortunate that HMRC did not seek the duty at the time of entry. However, HMRC, as a matter of law, have three years in which to collect the duty. We have no doubt that the Appellant considered that HMRC had approved the goods for Preference at the time of entry. Unfortunately for the Appellant this not what the law says. HMRC have three years to collect the duty. They sought to do so within the time limit.
31. We record our surprise that HMRC had not demanded the duty and cleared the consignments correctly when under Route 1 they had the goods and the related documents before them at the time of entry. Had they acted more appropriately the situation might have been capable of being retrieved to everyone's advantage.

If there was Official Error, what is its effect in the light of Invicta Poultry?

32. In broad terms, a trader is deemed to know the contents of the Official Journal (see Buxton LJ quoting Lightman J in Invicta "?????'everyone was deemed to know the law': see Behn" and Gunzler). As Buxton LJ said in Invicta "The trader therefore in every case ignores the Journal at his peril".
33. Where there has been an error on the part of the Customs Authority the question arises as to the effect of the trader's presumed knowledge of the Official Journal. This depends on whether the error could have been detected by an attentive trader by reading the Official Journal. This in turn is said to depend on the complexity or otherwise of the situation. As Buxton LJ (with whom Mantell and Thorpe LJJ agreed) said in Invicta:

"The first question was whether the error could have been detected by simple reading of the Journal?"

34. He had also said "Where, as in the present case, the question cannot be shown to be one of complexity, and can therefore be answered simply from Journal, it seems clear to me … that the issue whether the error could reasonably have been detected is determined by the very fact: that the error is revealed by the Journal". He then gave the warning quoted above about ignoring the Official Journal at one's peril.
35. We therefore ask ourselves could the error have been detected by simple reading of the Journal? On reading the Official Journal it is clear that certain matters have to be included in boxes 8 and 20. We consider that this should be obvious to a reader and certainly to an attentive trader reading the Official Journal. We find this as a fact.
36. We do not consider that there was an error on the part of the Customs Authority here. Even if there were we find that it was readily detectable by an attentive reading of the Official Journal. Accordingly, it is unnecessary for us to consider the issues of the trader's experience and degree of care as it would be in a case of complexity.
37. No representation as to the treatment of the goods has been shown by evidence to have been made by HMRC. In our view Article 239 is not engaged. We find that there was no "special situation" here and that our findings as to the Official Journal even if there were meant that there could be no remission of the duty.

Conclusion

38. We have found that:

(a) The paperwork did not meet the requirements for the nil rate of duty under the Preference Arrangements.

(b) No Official Error (within the special meaning of the phrase) has been shown on the evidence.

(c) Accordingly, HMRC are entitled to payment of the full duty.

39. Whilst we have much sympathy with the Appellant we cannot make our decision on the basis of sympathy but must do so on the basis of law. Accordingly, the appeal is dismissed for the reasons given above. We make no order as to costs.

ADRIAN SHIPWRIGHT

CHAIRMAN

RELEASE DATE: 12 January 2007

LON/2005/7007