[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom VAT & Duties Tribunals (Excise) Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Langstaff v Customs and Excise [2004] UKVAT(Excise) E00822 (11 November 2004) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00822.html Cite as: [2004] UKVAT(Excise) E822, [2004] UKVAT(Excise) E00822

[New search] [Printable RTF version] [Help]

E00822

EXCISE DUTY HYDROCARBON OIL — assessment — vehicle illegally powered by rebated kerosene detected in fuel system — vehicle seized and restored on payment of sum of money — some fuel purchase receipts uplifted at time — appellant informed that duty might be assessed depending upon his production of fuel purchase receipts — appellant alleging that he possessed "plenty" of receipts — assessment for duty made and notified solely on basis of uplifted receipts without input from appellant as to any other receipts possessed — assessment estimated on footing that all unvouched for mileage was unlawful held by tribunal to be precipitate and premature — decision on review to uphold assessment quashed — decision to discharge assessment substituted — appeal allowed

MANCHESTER TRIBUNAL CENTRE

DAVID LANGSTAFF Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr M S Johnson (Chairman)

Mr A E Brown (Member)

Sitting in public in Manchester on 14 October 2004

The Appellant did not attend and was not represented

Mr J Cannan counsel, instructed by the Solicitor's for HM Customs and Excise, for the respondents

© CROWN COPYRIGHT 2004


 


DECISION
1. This is an appeal against a review upholding an assessment to excise duty made pursuant to section 13(1A) of the Hydrocarbon Oil Duties Act 1979 ("HODA"). The assessment, for £1,300, was notified to the appellant under cover of a letter from the Commissioners of Customs and Excise ("Customs") dated 6 November 2003. In that letter, the sum assessed was said to represent the amount of the rebate on a quantity of heavy oil – in this case, kerosene – used to power the appellant's vehicle contrary to section 12(2) of HODA.
2. Section 12(2) renders unlawful the use of heavy oil on which home use rebate has been allowed as fuel for a road vehicle. The appellant was said to have been using such rebated fuel in order to run his vehicle. We understand the appellant's vehicle to be a minibus, used at any rate to some extent as a taxi or hire car.
3. In these circumstances, HODA provides for Customs to be able to assess the user of the fuel for duty equivalent to the rebate obtained contrary to HODA. For purposes of making the assessment under appeal, Customs had calculated that the appellant had driven his vehicle for 18,737 miles, using 2,839.28 litres of fuel, of which 2,510.02 litres constituted rebated fuel. At a rate of duty of 51.82 pence per litre, duty of £1,300.69 is said to have been evaded.
4. When the appeal was called on for hearing, it became apparent that the appellant had not attended, nor had he sent a representative on his behalf. The tribunal file shows that the appellant has been in receipt of legal advice from Maurice Smiths, solicitors of Pontefract, West Yorkshire. That firm lodged the Notice of Appeal on his behalf. The file further shows that, late in the day, Maurice Smiths applied by letter on the appellant's behalf to stand the case out of the list and have it relisted, on the ground that the appellant had a lucrative business commitment which he did not wish to forego. The appellant offered alternative dates on which the appeal might be listed, when he said he would be available to attend the hearing.
5. However the letter just mentioned took no account of the fact that the date of the hearing had been fixed in such a way as to weigh in the balance not only the convenience of the appellant but also the listing requirements of the tribunal, the ability of Customs' witnesses to attend to give evidence, and the availability of tax counsel to come and present Customs' case. In our judgment, it simply will not do for an appellant to seek to vacate a fixture purely on the ground that he prefers to work on the day in question, especially when he has no regard to the convenience of others concerned and to the tribunal's listing of its cases, which requires to be sorted out long in advance. There are, moreover, costs implications in aborting hearings at short notice.
6. For the above reasons we have had no hesitation in deciding that the hearing should proceed in the absence of the appellant, pursuant to rule 26(2) of the Value Added Tax Tribunals Rules 1986 (as amended), which apply to this appeal as much as to value added tax appeals.
7. Mr Cannan, representing Customs, passed to the tribunal a folder of papers ("the tribunal folder") helpfully assembled by Customs for the use of the tribunal at the hearing. The first document in the tribunal folder is a copy of the Notice of Appeal. In it, the appellant is expressed to appeal on the following grounds:

"When I was originally fined in this matter it was agreed by Customs & Excise's representative that the sum I paid of £560 would be acceptable in full and final settlement by way of both penalties and duty that should have been paid but had not. In addition I cannot see how it can possibly be proved that I have evaded the duty that is now alleged, numerous receipts were taken by Customs & Excise from the vehicle in question".

8. It is thus common ground that the appellant paid to Customs the sum of £560 on an occasion when his vehicle was found to contain rebated oil. We heard about this from Customs' first witness, Mr David John Townend. We find the following facts in relation to this appeal.
9. Mr Townend visited the appellant's home in Leeds at about lunchtime on 27 August 2003, in company with another officer of Customs, following a "tip-off" that the appellant might be using unlawful fuel in his vehicle. Mr Townend is an officer of Customs whose duties included testing vehicles to see if they were being run on unlawful fuel.
10. There is a straightforward test used by field officers of Customs for detecting that fuel is unlawful. Rebated fuel contains substances sometimes called "markers". One such "marker" is coumarin. The detection of coumarin in a sample indicates that rebated kerosene is present in the sample. Coumarin is deliberately inserted into rebated kerosene before sale to facilitate detection. If kerosene containing coumarin is present in the fuel system of a vehicle, then prima facie an infringement of HODA has taken place.
11. The field test does not, however, enable the proportion of rebated kerosene in the sample to be determined; such precision is only possible after laboratory tests. No such tests are relied upon in this case.
12. Mr Townend carried out the field test on the appellant's minibus, Registration No CAS 347A^[1]. The appellant was not present when he did this. The vehicle was parked round the back of his home. Mr Townend had first knocked on the door of the appellant's home and tried to attract the appellant's attention, but to no avail. We find that the appellant was indeed at home, but did not at first answer the door – we find that it is possible that he was sleeping heavily and was not readily aroused.
13. Having received no reply at the appellant's front door, Mr Townend summoned the police. He also arranged for vehicle recoverers to attend on site. When the police arrived, the doors of the vehicle were tried. A passenger door proved to be unlocked. Mr Townend opened the bonnet of the vehicle, using the lever under the dash. That enabled the officers to take a sample of fuel from the fuel filter next to the engine. The sample tested positive for coumarin.
14. Mr Townend and his companion officer^[2] searched the vehicle and uplifted a number of receipts for fuel purchased. There were 19 such receipts, the earliest dated 26 February 2002 and the latest 4 August 2003. They noted the mileage of the vehicle at the time.
15. With the police present, Mr Townend then again knocked on the appellant's door. This time the appellant came to the door. Mr Townend formally cautioned the appellant^[3], told him that he was not under arrest, and asked him if he wanted to be legally advised. The appellant said no.
16. Mr Townend and Mr Taylor then interviewed the appellant. We are satisfied that the written record of the interview contained in the tribunal folder was contemporaneous and should be accepted as accurate. We moreover find that it was signed (at the foot of each page and at the end) by the appellant at the time, as well as by the two Customs officers.
17. The appellant made admissions in interview on which Customs have relied. First, the appellant confirmed that he was the owner of the vehicle tested. He said that he had bought it when it had travelled about 106 – 107 thousand miles. He had paid £6,500 in cash for it. He said that he was normally responsible for fuelling the vehicle. When asked if he had fuelled the vehicle on kerosene, he replied:

"I did fuel it on this fuel but didn't know it was kerosene, but knew it wasn't proper white diesel, because it was cheaper."

18. He said that he had last fuelled the vehicle that morning, from a drum obtained from "a friend of a friend", and had put in 5 gallons. Altogether he had bought from the friend of a friend what he described as "between 60 to 70 gallons at a guess", all used in his minibus.
19. He said that he had paid £2 per gallon for the fuel. When asked if he was suspicious about the price, he replied that he was, but went ahead and bought it because it was cheap. He said that he did buy white diesel to power his vehicle, and that he had purchase receipts. He obtained 25 – 30 miles per gallon.
20. He admitted that he knew that it was an offence to power the vehicle on kerosene, and that kerosene bore less tax. He further admitted that he had evaded tax by using kerosene in this way, and said that he had nothing to add.
21. The record of interview ends at that point, but we find that a good deal more was said on that occasion between Mr Townend and the appellant than is referred to in the record of interview.
22. In the first place, we find that Mr Townend told the appellant that his vehicle would be formally seized, there and then, but that he might have it restored immediately on payment of a sum of money. We find that Mr Townend was not too clear about the correct procedure in a case such as this, where the offence had been admitted on site, and that he needed to consult his team leader over the telephone. Whilst still present at the home of the appellant, Mr Townend had about three telephone conversations with another officer of Customs, Mr H V Worrell ^[4], who was in his office at the time.
23. Mr Worrell authorized Customs' offer to restore the vehicle to the appellant, subject to its prior formal seizure. Mr Worrell specified a sum that should be demanded as a condition of restoration. The unlawful use of heavy oil and the taking of such oil into a vehicle each attract penalties under section 13(1) of HODA and section 9 of the Finance Act 1994. The penalties are £250 each. Calling out the vehicle recoverers had cost Customs between £100 and £200. Mr Worrell therefore authorised restoration of the vehicle on payment of £600, equating to the amount of the penalties that might have been imposed plus £100, the £100 being a contribution to the cost of summoning the vehicle recoverers. (Mr Townend had been able to stand down the vehicle recoverers, whose attendance was unnecessary in the circumstances; however they had attended on site, and their charges had accordingly been incurred.)
24. We find that no penalties were ever imposed as described; however the amount of the penalties, had they been imposed, was taken by Customs as a guide to the level of consideration that should be required as a condition of restoring the vehicle.
25. Mr Townend told the appellant that he could have his vehicle back on payment of £600. The appellant could only raise £560 on the spot. So Mr Townend accepted £560 and restored the vehicle there and then. We can understand that the appellant may not have appreciated the basis on which £560 was agreed to be acceptable to Customs. In particular, Mr Townend frankly admitted in evidence that, through oversight, the appellant was not given a document recording the terms on which his vehicle was being restored, which should have happened. No such document exists. There is therefore less clarity as regards this aspect of the case than one might expect.
26. We are however satisfied that the appellant was told by Mr Townend at the time that payment of the £560 would not necessarily be an end to the matter. What Mr Townend said to the appellant was that Customs' auditors would have to look into the quantity of unlawful fuel that the appellant had used in his vehicle. Mr Townend told the appellant that if the auditors found enough fuel receipts to cover the appellant's fuel requirements, then that would indeed be an end of the matter. However, if the auditors found a shortfall, then they might seek tax on the shortfall.
27. We find that, when the appellant was told that, he replied to Mr Townend that he had "plenty of receipts". In other words, according to Mr Townend's account of the conversation, Mr Townend had warned the appellant that more money might be due from him, but not if he had enough receipts to show that he had legitimately purchased the fuel apparently used, and that the appellant thereupon indicated that he had receipts to prove his purchases, in whole or in part.
28. Mr Townend did not provide the appellant with details of the fuel receipts that he and Mr Taylor had uplifted from the minibus, or indeed any kind of receipt for them. We accordingly find that the appellant was left ignorant of just how many, or how few, fuel receipts Customs had in their possession, and what purchases they related to.
29. The upshot was that Customs, in the person of Mr Townend, in effect expressed a desire to be provided in due course with a full set of receipts which might obviate a tax demand, and the appellant expressed a willingness to provide some receipts, with a view hopefully to obviating a tax demand. Customs had uplifted a certain number of receipts, but how many other receipts there might be was not clear. The appellant did not know what receipts Customs already had; Customs did not know what other receipts the appellant might be able to produce.
30. Customs' next witness before the tribunal was Mr Colin Gibson. At the time of the incident with which we are concerned, Mr Gibson was a senior non-compliance auditor of Customs. Mr Gibson took control of the appellant's file for the purposes of conducting an audit of his fuel usage. Mr Gibson described to the tribunal how the papers relevant to the appellant's case were passed in a clear envelope to the "next available" audit officer for the audit to be undertaken. That officer was Mr Mark Richard Leach.
31. Before handing the audit over to Mr Leach, Mr Gibson telephoned the car dealer who had sold the appellant's minibus to him. Mr Gibson obtained the exact mileage of the vehicle at the time it was sold to the appellant. When compared with the mileage noted by Mr Townend on 27 August 2003, this enabled a precise figure to be obtained for the mileage covered by the vehicle whilst in the appellant's ownership.
32. The tribunal next heard from Mr Leach. He told the tribunal how he had conducted the audit. He had Mr Gibson's figure for the mileage of the vehicle when purchased by the appellant, and Mr Townend's figure for the mileage on 27 August 2003. He also had the record of interview between Mr Townend, Mr Taylor and the appellant. Mr Leach adopted the higher mileage per gallon figure provided by the appellant in interview, namely 30 miles per gallon. He knew the relevant amounts of duty on rebated kerosene and lawful road fuel. He was provided with 19 receipts for lawful fuel purchased, being those taken by Mr Townend and Mr Taylor from the minibus.
33. On examination of the dates on the receipts, Mr Leach put 7 of them to one side, as they appeared to relate to fuel purchased before the appellant had bought the vehicle. The remaining 12 receipts totalled £329.26. He established the mileage covered in the ownership of the appellant, applied the notional consumption of fuel @ 30 miles per gallon, and converted to litres. He thereby established the total supposed quantity of legitimate fuel required to be purchased to cover the requisite mileage, and gave credit for expenditure of £329.26 on legitimate fuel. Crucially, he then treated the whole of the unvouched mileage as having been unlawfully covered using rebated kerosene, and quantified the notional shortfall of duty on that basis.
34. He then constructed and issued the assessment under appeal. Both he and Mr Gibson signed the assessment. As mentioned above, the assessment was notified under cover of a letter dated 6 November 2003. In that letter, Mr Leach informed the appellant of his rights to ask for a formal departmental review of the assessment, and to have recourse to this tribunal should the review result unsatisfactorily to the appellant.
35. We find that the letter of 6 November 2003 was the first letter written to the appellant by Customs. There was no attempt made to have the appellant provide Customs with further receipts for fuel purchased, of which the appellant is said to have indicated to Mr Townend that he had "plenty". Nor had Customs written to the appellant to tell him that an assessment was proposed. This is despite the fact that Mr Townend had told the appellant that an assessment might be unnecessary if fuel purchases could be vouched for by the appellant.
36. Mr Leach told us that this lack of contact with the appellant did not correspond with current best practice. These days, the practice of Customs is to have more contact with the appellant in pursuing the audit trail. At that time, the practice was to do what one could, as an audit officer, to formulate a shortfall from the limited documentation available, and just "put the assessment out" (to use Mr Leach's words). There appears to have been a decision by Customs during the last year or so to alter their practice. We find that Customs now think it to be inappropriate to construct and issue an assessment until a taxpayer has had an opportunity to have input into the calculation of the figure said to be owing, and until he has been given the opportunity to make representations.
37. Mr Leach told the tribunal that, if the audit were before him afresh, he would under current practice have made enquiries as to the amount of fuel legitimately purchased in this case. He said, "I'd have probably put out a letter" – by which we take him to mean that he would have asked the appellant for further fuel receipts, or other evidence of legitimate purchases. He confirmed to us that, when he constructed the assessment, he had no information that the appellant wasn't able to produce further receipts. He said that he stood by the assessment, but he admitted that it was "perhaps a bit rash and a bit sudden".
38. Customs' final witness was the reviewing officer, Mr Michael J Brewis. His review letter was dated 29 January 2004. The letter was written in reply to a letter from Maurice Smiths to Customs dated 12 January 2004, in which Maurice Smiths stated inter alia as follows:

"We understand your staff seized some receipts from the vehicle which will confirm that our client was purchasing his fuel from garages and would have paid all duty in the usual way. Whilst the receipts would not account for all the mileage travelled and fuel used we cannot see how you can say that any duty has been evaded. We also cannot see how that can be established in these circumstances".

39. We think that the paragraph just quoted can be read on more than one level.
40. Firstly, the letter appears to be saying, in effect: "You have some evidence that fuel was being legitimately purchased. You do not have all the evidence as to the fuel legitimately purchased, but you have nevertheless gone ahead and issued the assessment without it. The assessment disregards such further evidence as there may be".
41. On another level, the letter is saying, in effect: "Your methodology in calculating the assessment is unsound, because it is based on an estimate. We do not accept that your method of calculation is fair, seeing that you rest a case for tax evasion on it, despite its hypothetical nature".
42. Mr Brewis replied to Maurice Smiths' letter in his letter of 29 January 2004. After explaining the basis of calculation of the £560 paid ^[5], he referred to section 13(1A) of HODA, and continued as follows:

"I have reviewed the manner of calculation of the assessment and have concluded that it was reasonable. I acknowledge what you say about your client having purchased fuel from garages. I note, though, that he was only able to provide receipts for a relatively small proportion of the fuel calculated as having been necessary to cover the mileage in fact driven. Under the circumstances, [Customs] take the view that the balance of mileage must have been driven using kerosene. Of necessity, estimation of some kind is involved in the process of calculating the duty involved, but [Customs'] practice has been repeatedly approved by the VAT & Duties Tribunals".

43. Mr Brewis told us that, in his opinion, the assessment was entirely reasonable, because of the large shortfall in the invoices for fuel purchased. He took it to be axiomatic that, if there had been further invoices, then Customs would have been provided with them. He admitted that he had only just become aware that Customs had revised their practice, as mentioned in paragraph 36 above, and had not taken account of current practice in conducting his review.
44. Mr Brewis explained that his review letter incorrectly described the £560 paid as comprising two penalties of £250 each together with £60 representing a payment of approximately half of Customs' costs in seizing and restoring the vehicle. Mr Brewis now accepted, he said, that no penalties had been imposed in this case. He now regarded £500 of the £560 paid as the amount that would have been charged had penalties been imposed.
45. We have been impressed by the candour of all the witnesses we heard and have had no reservations in accepting their evidence. Nevertheless the facts that we have found add up to a sorry story. It is clear to us that the appellant should have had the opportunity to submit additional fuel purchase invoices before the assessment under appeal was prepared, but that he was not offered that opportunity. This is despite the fact, as we find, that the effect of what the appellant was told by Mr Townend at his home was that he would be afforded that opportunity.
46. Mr Gibson and Mr Leach, following the practice of Customs at that time, went ahead and "audited" the appellant's alleged fuel use from very limited information. It is a feature of this case that none of the invoices used in the audit were provided by the appellant – they were just the invoices that were uplifted from the vehicle, before the appellant was interviewed. After the recorded interview, during the part of the conversation with Mr Townend that was not recorded – that is, at the time when the £560 accepted by Customs for the restoration of the vehicle was negotiated – the appellant was told, as we find, that it might not be necessary to issue an assessment in addition, provided that he could produce fuel purchase receipts. The appellant told Mr Townend that he had plenty of receipts.
47. On behalf of Customs, Mr Cannan submitted that the tribunal has a wide jurisdiction in an appeal of this kind, as expressed in section 16(5) of the Finance Act 1994. He submitted that the appellant was confusing the sum paid as a condition of restoration, namely £560, with his liability for payment of excise duty. The appellant had been left in no doubt, Mr Cannan said, that there would be an audit of his liability in that regard in any event. There was never, he said, an agreement that payment of £560 was in full and final settlement.
48. Mr Cannan submitted that the methodology employed in calculating the assessment was reasonable. Best practice might have been to have requested the input of the appellant into the calculation, but that was unnecessary. The tribunal should judge the genuineness of the appellant's position by his failure to volunteer any further information on the basis of which the calculation might have proceeded.
49. It was clear from the interview, Mr Cannan said, that there had been some illegitimate use of kerosene, seemingly to the extent of at least 60 or 70 gallons. The appellant had admitted tax evasion. He had not assisted Customs or the tribunal at all. The inference to be drawn from the non-production by the appellant of further fuel purchase receipts was, Mr Cannan said, that he had not discharged the burden of showing that his unvouched consumption was illegitimate.
50. Mr Cannan submitted that the evolution of Customs' practice in this area should not invalidate the basis of calculation of the assessment under their previous practice. The calculation was, Mr Cannan said, perfectly sound. He submitted that for the tribunal to allow this appeal and discharge the assessment might well mean that, having regard to section 12A(4)(b) of the Finance Act 1994 ^[6], Customs would now be precluded from raising a fresh assessment based on a fresh audit taking into account information provided by the appellant.
51. Mr Cannan is correct that this case is one of admitted tax evasion, and that the appellant has not assisted Customs or this tribunal by producing further fuel purchase receipts, or any other evidence of legitimate purchases. In principle, it was correct that an assessment should be issued. What is, however, for consideration in this appeal is the correctness of having issued this particular assessment, made as it was on a particular basis, and calculated as it was in a particular manner. It is clear to us that the appellant is not challenging the proposition that he evaded duty; rather his appeal concerns the decision of Customs to assess him as they did.
52. We accept Mr Cannan's submission that the appellant must have appreciated that a sum of money in addition to the £560 paid might be due from him, depending upon Customs' calculation of duty evaded. We agree that the appellant might have volunteered information having a bearing on the calculation and that it is unhelpful, even suspicious, that he did not do so. We do not however agree that his failure to do so invalidates his stance that the assessment under appeal was wrong.
53. We think that the only proper conclusion from the conversation between Mr Townend and the appellant was that receipts might be available that were in addition to those that had already been uplifted, and that Customs had been placed on notice that those receipts, which the appellant said he possessed, should (such as they might be) be taken into account in auditing the appellant's illegitimate fuel usage. It may be a high risk strategy for the appellant never to have provided the receipts, but he is still able to say, "I was never asked to provide the information Mr Townend mentioned, before the assessment was issued. Consequently I object to the assessment". The burden is not on the appellant to show exactly how the assessment ought to have been arrived at, in order for the tribunal to be satisfied that the assessment as made is fatally flawed.
54. In our view to have calculated and issued the assessment under appeal without taking into account any other fuel purchase receipts that there might be was a precipitate and premature act. It was wrong not to have corresponded with the appellant or his solicitors before issuing and notifying the assessment, so as to have secured the appellant's input into the calculation. It seems to us to be a matter of common sense, not to say a requirement of elementary fairness, that that should happen. The tribunal is pleased that Customs' unsatisfactory practice in this regard has apparently been altered.
55. Mr Brewis's review letter proceeded on false premises. It is clear to us that he had not correctly ascertained the facts, otherwise he would not have misstated the basis of calculation of the £560. He does not appear to have known what Mr Townend told the appellant with regard to production of receipts, nor what the appellant had replied, otherwise Mr Brewis would not have stated in his review letter, "I note … that [the appellant] was only able to provide receipts for a relatively small proportion of the fuel calculated … ". In fact, the appellant had stated that he was able to provide receipts – indeed "plenty" of them.
56. Mr Brewis alleged in his review letter that these tribunals have "repeatedly" approved Customs' practice of issuing estimated assessments on limited information, but we have not been referred to any such decision, and it is not pretended that there exists a decision approving Customs' practice in a case like this. In a nutshell, the assessment in this case has been calculated on the basis of an assumption that all the unvouched fuel consumption of the vehicle has been illegitimate, when the appellant ought to have been invited to show that not all his consumption was illegitimate^[7].
57. Mr Cannan's submission that a fresh assessment would now be time-barred does not seem to us to be correct. Until such time as Customs have obtained the input of the appellant into the formulation of the proposed assessment, or it is clear that no information will be forthcoming from him, Customs would not be justified in forming an opinion as to the assessment that should be made in this case ^[8] . Meanwhile time will not, as we see it, have commenced to run for the purpose of section 12A(4)(b).
58. We therefore exercise our power to quash the decision of Mr Brewis to uphold the assessment. As in the particular circumstances of this appeal we can see no figure to which, on review, he might have modified the assessment, we do not exercise our power to vary his decision. Rather we exercise our power to substitute for his decision our own decision that the assessment was precipitate and premature for the reasons given above, and that it should therefore be discharged. This appeal is therefore allowed.
59. During the course of the hearing, we questioned whether section 16(3) of the Finance Act 1994 required, in order to found the jurisdiction of the tribunal, prior payment of the amount of the assessment under appeal, or the provision of security for that amount, subject to considerations of hardship. That sub-section however begs the question of liability, which has been at large in this case. As no point has been taken by Customs with regard to the applicability of that sub-section, we have disregarded it.

MICHAEL S JOHNSON

CHAIRMAN
Release Date: 11 November 2004

MAN/2004/8034

Note 1    This was understood by Customs to be a so-called “cherished” number, which was not indicative of the age of the vehicle.     [Back]

Note 2    who was a Mr Paul Taylor – he did not give evidence to the tribunal.     [Back]

Note 3    That is to say, he administered the caution prescribed by paragraph 10.4 of Code of Practice C under the Police and Criminal Evidence Act 1984.     [Back]

Note 4    Mr Worrell did not give evidence to the tribunal.    [Back]

Note 5    and getting this wrong – see paragraph 44 below.    [Back]

Note 6    which states, so far as relevant: “No assessment … shall be made at any time after … the end of the period of one year beginning with the day on which evidence of facts, sufficient in the opinion of the Commissioners to justify the making of the assessment, comes to their knowledge”.    [Back]

Note 7    (which need not necessarily have required the production of further fuel receipts – the appellant might have put forward other evidence of legitimate purchases, such as, for example, the evidence of a garage proprietor who might say that the appellant regularly purchased fuel from him in particular quantities.)     [Back]

Note 8   (as indeed Mr Townend in effect told the appellant on 27 August 2003.)    [Back]