E00831
EXCISE DUTY – refusal to restore excise goods being 3,200 cigarettes and 3 kilograms of smoking tobacco – (1) whether Tribunal has jurisdiction to find facts – in this appeal yes – (2) whether goods purchased by the Appellant in Belgium – no – whether Belgian goods obtained by another person who sold the goods to the Appellant in Calais – yes -- (3) whether duty payable in United Kingdom if Appellant did not pay the duty in Belgium and transport the goods from Belgium – yes - whether the fact that the other person transferred the goods to the Appellant in Calais for payment meant that they were held by the Appellant for a commercial purpose in the United Kingdom – yes -- whether review decision a reasonable decision - - yes - appeal dismissed – Council Directive (EEC) No. 92/12 Arts 7 to 9; The Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002 SI 2002 No. 2692 Art 4; Customs and Excise Management Act 1979 S 152(b); Finance Act 1994 Ss 14 to 16
LONDON TRIBUNAL CENTRE
ANDREW WILSON
Appellant
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE
Respondents
Tribunal: DR NUALA BRICE (Chairman)
DR MICHAEL JAMES
Sitting in public in Bristol on 8 September 2004
The Appellant in person
Sarabjit Singh of Counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents
© CROWN COPYRIGHT 2004
DECISION
The appeal
- Mr Andrew Wilson (the Appellant) appeals against a decision on review dated 1 October 2003. The decision was a refusal to restore 3 kilograms of smoking tobacco and 3,200 cigarettes seized on 24 June 2003.
- The hearing took place in Bristol on 8 September 2004. On one of the issues in the appeal (issue (4)) Counsel for Customs and Excise asked leave to make additional legal submissions after the hearing. These were received by the Tribunal on 8 October 2004 and amended submissions were received on 15 October 2004. Copies of both were sent to the Appellant who, on 25 October 2004, was asked to comment within fourteen days. The Appellant wrote on 1 November 2004. However, we have reached our Decision in the appeal without having to rely upon the additional submissions.
The legislation
- We attach as an Annex to this Decision a summary of the applicable legislation. The main provisions which are relevant to this appeal are contained in Articles 8 and 9 of Council Directive (EEC) No. 92/12 which provide that where products are acquired by private individuals for their own use and transported by them excise duty is charged in the member state in which the goods are acquired. If excise goods are held for commercial purposes in another member state then duty is due in that member state. In order to establish whether goods transported by private individuals are intended for commercial purposes member states must take account of certain criteria which include the quantity of the products. As far as quantity is concerned member states may lay down guide levels solely as a form of evidence. In the United Kingdom the guide levels are 3,200 for cigarettes and 3 kilograms for smoking tobacco.
The issues
- It was not disputed that the goods were Belgian goods. The review decision was based on facts stated by the Appellant when he was interviewed at Dover, namely that he had given money to a friend to buy the goods and had collected them from the friend at Calais. At the hearing his oral evidence conflicted with his previous statements. Customs and Excise argued that the Tribunal had no jurisdiction to find facts based on the fresh evidence. Customs and Excise also argued that the exemption from duty did not apply because the Appellant had not purchased the goods and paid the excise duty on them in Belgium nor had he transported the goods from Belgium. Finally Customs and Excise argued that the goods were held for commercial purposes because the goods were not duty and tax paid in the member state in which the goods were acquired.
- Thus we have identified the following as issues in the appeal:
(1) whether the Tribunal has jurisdiction to make findings of fact on fresh evidence;
(2) if so, whether the Appellant's oral evidence given at the hearing was to be preferred to that given at his interview in Dover;
(3) if the facts were that the Appellant had not been to Belgium to purchase the goods and pay duty on them, and had not transported them from Belgium to the United Kingdom, whether the exemption from United Kingdom duty for goods imported for personal use applied;
(4) if the facts were that the Appellant had given money to another person who purchased the goods in Belgium and transferred them to the Appellant in Calais, whether the goods were held for a commercial purpose in the United Kingdom because duty and tax had not been paid by the Appellant at the time he acquired the goods; and
(5) whether the review decision was reasonable.
The evidence
- A bundle of documents was produced by Customs and Excise. Oral evidence was given by the Appellant on his own behalf. Oral evidence was given on behalf of Customs and Excise by Mrs Andreina Dalton, an Officer of Customs and Excise who interviewed the Appellant at Dover, and by Mr David Harris, an Officer of HM Customs and Excise, who gave the review decision the subject of this appeal. A witness statement by Mr Michael David Clement Ansell, an Officer of HM Customs and Excise, who assisted at the interview of the Appellant, was not objected to and was read at the hearing.
The facts
- From the evidence before us we find the following facts.
The interview at Dover
- The Appellant lives in Swindon, Wiltshire. On 24 June 2003 at about 4.00 pm he arrived at the Hoverport at Dover as a foot passenger from Calais. He was carrying three kilograms of smoking tobacco of Belgian origin and 3,200 cigarettes all of which were in Hoverspeed bags. He was stopped and interviewed by Mrs Dalton. The entries in Mrs Dalton's notebook begin at 16.05. The first relevant extract from the notebook reads as follows:
"Q. Are you travelling on your own?
A. Yes
Q. Where did you buy the goods?
A. Calais
Q Have you been anywhere else other than Calais?
A. No I don't have time
Q.. How much did you pay for [the] goods?
A. Not over £400
Q. Do you have a receipt?
A. No. I don't have. I can't find it. I am not into keeping receipts except for electrical goods.
Q. Where in Calais did you buy these goods?
A. In the Hoverspeed terminal at Calais."
- When the Appellant was asked for a receipt he appeared to make every effort to find it. (However, when the receipt was produced a few weeks later it did not support his statement that he had purchased the goods in the Hoverspeed terminal at Calais because it was from a tobacco outlet in Adinkerke, Belgium.)
- After the above extract the notebook records that the Appellant wrote on the notebook the words "I agree" and added his signature. After that the notebook records that the "commerciality statement" was given in full and the questioning continued as:
"Q. How did you buy these goods?
A. My friend went over earlier in the day; he had business to do. I
gave [him] the money to buy the goods. I met him at Calais. He bought the goods for me for my own use."
- Again the notebook was signed by the Appellant at this stage. Thereafter appeared the following paragraph:
"Mr Wilson was upset stating that his money had paid the duty as he had given the money to his friend to buy the goods and he had no idea where his friend had bought the goods."
- At 16.20 Mrs Dalton asked Officer Ansell to explain the law to Mr Wilson. Mr Ansell explained that the goods were liable to seizure because the Appellant had neither been to, nor paid the internal taxes in, the country in which the goods had been purchased, namely, Belgium. The notebook records that the Appellant then stated again that the goods were for his own use and he didn't know where his friend had bought the goods.
- At 16.35 the goods were seized. As a result of an oversight no Form 12A was given to the Appellant at the time of the seizure.
The subsequent correspondence
I4. In a letter received by Customs and Excise on 1 July 2003 the Appellant wrote asking for his goods to be restored. He said "I cannot apply on Form 12A as it was not given to me." On 7 July Customs and Excise replied to the Appellant and wrote as follows:
"It is not clear whether or not you wish to lodge a formal appeal against the legality of the seizure under Schedule 3 of the Customs and Excise Management Act 1979.
A claim against forfeiture must be received by us within one month of the date of the seizure. If a valid claim is received, the Commissioners are then obliged to institute proceedings for the condemnation of the seized goods. This will involve Court proceedings, normally at Dover Magistrates Court, for which you will receive a summons, this may take as long as six months before the matter is placed before the Courts. Magistrates will decide whether the goods were liable to be seized and also decide on the awarding of costs.
Alternatively, you have the option of requesting the restoration of the seized goods; a decision in writing will be made whether or not to restore the goods to you."
- The letter annexed a form with two options. Option 1 was to request the restoration of the goods and option 2 was to appeal against the legality of the seizure. On 8 July the Appellant chose option one and added: "Goods within legal limit. Duty paid at point of purchase by me." In evidence which we accept the Appellant said that he had chosen not to go to the magistrates court because he did not want an award of costs made against him. On 12 August Customs and Excise refused to restore the goods. The reasons were that the Appellant had stated in his interview that the goods had been purchased in Belgium on behalf of the Appellant by a friend and that, in order to qualify for relief from United Kingdom duty, goods had to be purchased by the importer in the country of origin and be for personal use.
- On 30 August 2003 the Appellant wrote again to Customs and Excise sending them a copy of a receipt. The receipt was from Euro Baccy at Adinkerke; it was dated 24 June 2003 and was for the total sum of £542 being £150 for 60 [packets of] Golden Virginia and £392 for 16 Lambert & Butler. The letter asked for a review of the decision not to restore the goods and also said:
"I purchased the goods and left them in the boot of a friend's car. Unfortunately his business trip was extended so I had to return to collect them."
- On 1 October 2003 Customs and Excise confirmed on review the decision not to restore the goods and it is against that review decision that the Appellant appeals. The review decision was based on (1) the facts stated by the Appellant at his interview, namely that the Appellant had stayed in Calais and had not travelled to Belgium to buy the goods; (2) the fact that the different accounts given after the interview by the Appellant were contradictory; and (3) the view of the law that relief from duty was only available if the importer had purchased the goods, paid the duty, and transported the goods himself.
- On 24 October 2003 the Appellant lodged his notice of appeal and gave the following grounds of appeal:
"Customs and Excise statement misinterpreted goods purchased by me (tobacco and cigarettes) for personal use within legally prescribed limits. Badgered by Customs Officer when I never been through this before. Confused at the time they claimed duty not paid but it was included in price at point of purchase in Belgium. No appeal form issued at time of seizure."
Reasons for decision
- We consider separately each of the issues for determination in the appeal.
(1) Does the Tribunal have jurisdiction to find its own facts?
- The first issue is whether the Tribunal has jurisdiction to reach its own findings of fact on fresh evidence.
- The Appellant argued that the Tribunal did have jurisdiction to hear his appeal. No one had told him about the magistrates court and he was only told of his right to appeal to the Tribunal. He should have been given a Form 12A when the goods were seized but that had not been given to him that day so he had been ignorant of his rights.
- For Customs and Excise Mr Singh relied upon the judgement of the Court of Appeal in Gascoyne v Customs and Excise Commissioners [2004] EWCA Civ 1162 for the principle that the Tribunal could not make a finding that goods were imported for the personal use of the traveller rather than for commercial purposes because the Appellant chose not to appeal against the legality of the seizure.
- In considering the arguments of the parties we first recall that the Appellant was told of his right to make a claim against forfeiture in the letter from Customs and Excise dated 7 July and he had until 24 July to make such a claim. Turning to the arguments of Mr Singh the question whether the Tribunal could make a finding of fact that goods were imported for the personal use of the Appellant was considered in Gascoyne by Lord Justice Buxton at paragraphs 51 to 56 of his judgment. At paragraph 49 of his judgment he referred to the Convention in Schedule 1 of the Human Rights Act 1998 and remarked that the forfeiture process interfered with rights to property potentially protected by Article 1 of the First Protocol of the Convention. In paragraph 50 he said that issues of due process potentially arose. He then said that an actual finding in condemnation proceedings is binding on a tribunal both as to the decision as to the lawfulness of seizure and as to the underlying facts; if there were condemnation proceedings the importer would have had his day in court in front of a judicial body. However, if the importer had given no notice that the thing seized was not liable to forfeiture, with the result that it was deemed to be condemned as forfeit, then the Tribunal could reopen those issues. Paragraphs 55 and 56 of the judgment read:
"55. In my view, therefore, in a case where the deeming provisions under paragraph 5 [of Schedule 3 of the Customs and Excise Management Act 1979] are applied. the tribunal can reopen those issues: though the tribunal will always have very well in mind considerations of, or similar to, abuse of process in considering whether such issues should be ventilated before it.
- The mere fact that the applicant has not applied to the Commissioners. and therefore there have been no condemnation proceedings, would not, in my view, be enough. But in my view it goes too far to say that the deeming provisions have always, in every case, got to be paramount."
- Applying those principles to the facts of the present appeal we recall that there were no condemnation proceedings because the Appellant chose the option of requesting the restoration of the seized goods. We also bear in mind that the letter of 7 July 2003 from Customs and Excise to the Appellant did not indicate that by not choosing the option of appealing against the legality of seizure the Appellant would lose his right to have the facts decided by the Tribunal. Indeed, the letter appeared to be steering the Appellant to choose the option of requesting the restoration of the goods by emphasising the delay and cost of condemnation proceedings and the Appellant confirmed to us that he chose the option of the Tribunal because he did not want an award of costs to be made against him. It may also be relevant that, in this appeal, the issue is not simply whether the goods were for the Appellant's personal use. In our view there is no abuse of process in allowing the issues of fact to be ventilated before us.
- We therefore conclude that we may find the facts relevant to the issues in the appeal.
(2) Is the evidence at the hearing to be preferred?
- The second issue is whether the Appellant's oral evidence given at the hearing was to be preferred to that given at his interview in Dover.
- In considering this issue we first set out the evidence given by the Appellant at the hearing. We then consider the claims made by the Appellant about what he meant when he was making the statements to Mrs Dalton at the interview. And finally we make our findings of fact on the disputed evidence.
The Appellant's oral evidence
- The Appellant's oral evidence at the hearing was as follows.
- The Appellant said that on 24 June 2003 he had travelled with a friend, in the friend's car, from his home in Swindon to Dover. The friend was called Mr Ernest Jones and he, the Appellant, had known Mr Jones for a number of years. They had met at a local British Legion club and they would see each other "for a pint" about every two weeks. He did not know Mr Jones' address but had his telephone number. Mr Jones could not attend the hearing because he was abroad in France where he undertook business dealings relating to the construction industry. When he and Mr Jones arrived at Dover they caught the 7.00 am ferry to Calais and then drove to a tobacco outlet in Belgium where they arrived at about 9.00 am. He (the Appellant) was unfamiliar with the route and did not know that he was in Belgium. He described the route to us and appeared to remember it well.
- He and Mr Jones entered the tobacco outlet. There were no goods on the shelves; they were all stored at the back. He did not ask the price of the goods but ordered what he wanted and someone went to the back of the shop to get them. The Appellant gave a convincing description of the inside of the shop. He said he was not familiar with euros and exchange rates but Mr Jones was. He thought that he would be asked for euros, and given euros in change, and he had brought only sterling. He did not know how the system worked. Accordingly, he (the Appellant) gave £600 in cash to Mr Jones who paid for the goods. The Appellant received the change (£50) and a receipt. The goods then dropped into a shoot below the counter in what looked like a black plastic bag.
- The Appellant continued by saying that he and Mr Jones returned to the car and Mr Jones drove in the direction of Calais. At about 10.00 am, at a place near Calais, Mr Jones purchased beer and wine. Mr Jones then took him (the Appellant) to the Hoverspeed terminal at Calais and told him that he had business to attend to but would be back in a couple of hours. The Appellant's goods were left in the boot of Mr Jones' car. He (the Appellant) went to a public house near the Hoverspeed terminal where he received a mobile telephone call from Mr Jones. Mr Jones said that the business he was attending to would take two or three more hours and that the Appellant should make his own way back. They would meet at a public house outside the Hoverport at Dover. The Appellant did not want to carry the black plastic bags of goods with him and so they remained in Mr Jones' car.
- Accordingly at about 11.30 am the Appellant took what he called a "return flyer" back to Dover which only cost £1 as a foot passenger and went to a public house at Dover to have a pint. He did not stay in Calais because he "preferred a pint of Guinness". The intention was that his friend would join him there and drive him back to Swindon. No sooner had the Appellant arrived at the public house, at about 12.30 pm, than he received another mobile telephone call from Mr Jones who said that he had been further delayed and could be several more hours. He suggested that the Appellant should return to Calais where Mr Jones would meet him and give him his excise goods and then he could make his own way home. At about 1.pm the Appellant went back to Calais. He met Mr Jones in a car park outside the terminal, picked up his goods and went back to Dover at about 1.30 pm with the intention of getting the train back to Swindon. On the ferry he transferred the goods from the black plastic bags to Hoverspeed bags which were on a counter. Accordingly, when he arrived at Dover the goods were in the Hoverspeed bags. He was stopped at Dover.
- The Appellant said that, after the interview with Customs and Excise, he met Mr Jones who drove him back to Swindon.
The Appellant's claims about his statements as recorded in the notebook.
- We have found it convenient to consider the Appellant's claims about the statements recorded in Mrs Dalton's notebook by first re-stating the contents of the notebook (in italics) followed by the Appellant's claims at the hearing.
Q. Where did you buy the goods?
A. Calais
- The Appellant claimed that he had not said that he had "bought" the goods at Calais but that he had "brought" them from Calais. We note that the notebook does not say "bought" but "buy" which is difficult to confuse with "brought".
Q Have you been anywhere else other than Calais?
A. No I don't have time
- The Appellant claimed that he had replied "no" as he thought that the officer was referring to that particular journey and, according to the evidence given at the hearing, he had been to Belgium then back to Dover then back to Calais and then to Dover and on his last trip he had only been to Calais. We are of the view that it was in order to explain this answer that the Appellant gave the very unlikely evidence of the double return trip on the same day.
Q.. How much did you pay for [the] goods?
A. Not over £400
- The Appellant claimed that his reference to £400 was for the cigarettes only not for the total amount; he had said £400 because Mrs Dalton was pointing to the Lambert & Butlers which had cost about that much. Mrs Dalton gave evidence that she intended to refer to all the goods; she could not recall pointing to the cigarettes; she would not be vague. We prefer the evidence of Mrs Dalton. The conflicting evidence about the amount given for the goods, as stated by the Appellant at the hearing, only emerged at the hearing but, of course, was consistent with the receipt he had produced.
Q. Do you have a receipt?
A. No. I don't have. I can't find it. I am not into keeping receipts except for electrical goods.
- The Appellant claimed that he assumed that the receipt had been lost when he transferred the goods from the black plastic bags to the Hoverspeed bags. Several days later he found the receipt in his inside coat pocket and sent it to Customs and Excise with his appeal. However, the receipt did not support his statement recorded in the notebook that he had purchased the goods in the Hoverspeed terminal at Calais because it was from a tobacco outlet in Adinkerke, Belgium.
Q. Where in Calais did you buy these goods?
A. In the Hoverspeed terminal at Calais.
- The Appellant claimed that he said that he got the goods from the Hoverspeed terminal in Calais because that was where he picked them up from Mr Jones. But Mrs Dalton had said "where did you buy the goods?" and the Appellant's explanation does not fit that question.
Q. How did you buy these goods?
A. My friend went over earlier in the day; he had business to do. I
gave [him] the money to buy the goods. I met him at Calais. He bought the goods for me for my own use.
- The Appellant claimed that the reason why he had said that his friend bought the goods for him was because Mr Jones had dealt with the cash at the shop because he, the Appellant, did not understand euros and exchange rates. However, the transaction evidenced by the receipt was in sterling.
"Mr Wilson was upset stating that his money had paid the duty as he had given the money to his friend to buy the goods …
- The Appellant claimed that he said that he had given his friend the money but meant in the shop in Belgium because he could not understand euros and exchange rates. He would not have waited at Calais from 8.00 am to 13.00 pm and let Mr Jones go to Belgium on his own; he had gone with Mr Jones.
… and he had no idea where his friend had bought the goods."
- The Appellant claimed that he had said that he did not know where his friend had bought the goods because when they were both in Belgium he did not know where he was. We do not find this evidence convincing.
- Generally, the Appellant agreed that he had signed the notebook twice but claimed that at the interview he was confused and found Mrs Dalton, and the two security guards at the door, intimidating. He also found Mrs Dalton's Scots accent difficult to understand. He also claimed that he could not read Mrs Dalton's writing very well and did not have his reading spectacles with him. He was totally bewildered and did not know what he was signing. He thought that he was obliged to sign and was totally flustered.
- The evidence of Mrs Dalton was that the Appellant had no difficulty in reading her notebook and did not tell her that he had any difficulty with her accent. She told the Appellant that she was seizing his goods because he had not been to Belgium. He replied that he had paid the duty and it was his money which had paid for the goods. Mrs Dalton also gave evidence that, in her experience, people bought in bulk in Belgium and then went to Calais where they sold to members of the public who would then put the goods in Hoverspeed bags to look as if the goods had been purchased on Hoverspeed.
- We prefer the evidence of Mrs Dalton. We did not find her intimidating nor did we find her speech or hand writing difficult to understand. We accept the evidence of Mrs Dalton that the Appellant was not flustered at the beginning of the interview but was upset and frustrated at the end.
Our views
.
- In considering the disputed evidence we have borne in mind a number of factors. First, that the various accounts of his journey given by the Appellant appeared to develop over time. The first account was that contained in his first answers to Mrs Dalton at the interview, namely that he bought the goods at the Hoverspeed terminal in Calais. However that did not explain why the tobacco was Belgian tobacco. Later in the interview he said that his friend had bought the goods for him and he had collected them at Calais. It was only after receiving the letter of 12 August 2003 from Customs and Excise (which said that to qualify for relief the goods had to be purchased by the holder in the country of origin) did he expand his account by claiming that he had purchased the goods himself.
- It seems to us that the account given to us in evidence at the hearing was constructed in an attempt to deal with the points made by Customs and Excise and to supply explanations for the statements made at the interview. Apart from the receipt, which we mention later, it is relevant that the details of the account had not been made known to Customs and Excise prior to the hearing and that there was no evidence, documentary or oral, to corroborate it. The burden of proving the facts and matters upon which he relied was on the Appellant The Appellant said that Mr Jones could not attend the hearing because he was abroad but the Appellant had not asked for a date for the hearing which would have suited Mr Jones.
- We found the Appellant's account given at the hearing to be unpersuasive. In particular, we cannot understand why the Appellant would have crossed over to Dover and then back to Calais when his goods were in his friend's car at or near Calais. It would have been simpler to wait at Calais. We are of the view that the double trip was only inserted to provide an explanation of the answer "no" he gave at the interview to the question whether he had been anywhere else other than Calais. It is also relevant that, if the Appellant had intended to wait at the Dover public house for Mr Jones, then Mr Jones would have imported the Appellant's goods illegally.
- We noted that throughout the hearing the Appellant made much of the fact that "he did not know how the system worked" but he knew all about the Form 12A.
- As far as the receipt is concerned it only evidences a purchase on 24 June 2003 but does not indicate who the purchaser was. If the Appellant's evidence had been more convincing we would have been impressed by the receipt but the number of inconsistencies and contradictions in his various accounts led us to be cautious. If the Appellant had genuinely been to Belgium on 24 June 2003 we do not understand why he did not tell that to Mrs Dalton at the interview.
- Having considered all the evidence before us, and on the balance of probability, we find that the Appellant went to Calais on his own, purchased the goods from an individual who himself had probably obtained the goods in Belgium, returned on the Hoverspeed ferry where he put the goods into Hoverspeed bags, and arrived in Dover where he was questioned by Mrs Dalton.
- We conclude that we do not prefer the Appellant's oral evidence given at the hearing and that the facts upon which the review decision were based were substantially correct.
- However, we record that it was not challenged that the Appellant intended to use the goods himself and that he transported them into the United Kingdom. Also, the quantity of the goods were within the guidelines.
Issue (3) - Was it relevant that the Appellant did not go to Belgium himself?
- The third issue in the appeal is whether the exemption from duty for goods imported for own use did not apply because the Appellant had not purchased the goods himself, had not paid duty in another member state, and had not transported the goods from the member state in which duty was paid.
- For Customs and Excise Mr Singh argued that in order for the Appellant to import goods for his own use it was necessary for him to transport the goods from the member state from which they were purchased to the United Kingdom. He relied upon Regulation 12(1A) of the Tobacco Products Regulations 2001 as amended by the Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002 which provided:
"(1A) In the case of excise goods (beer, tobacco products) acquired by a person in another member state for his own use and transported by him to the United Kingdom, the excise duty point is the time when those goods are held or used for a commercial purpose by any person."
- We have also referred to Article 8 of the Directive which provides:
"8. As regards products acquired 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."
- It seems to us that this provision assumes that the private individual will acquire the goods in another member state, pay the duty there, and transport the goods himself from that member state to the United Kingdom, in which case no further duty is payable on importation into the United Kingdom so long as the goods are for the individual's own use.
- We therefore conclude that, on the facts we have found, the exemption from duty for goods held for own use did not apply because the Appellant did not purchase the goods in Belgium; did not pay the duty in Belgium; and did not transport the goods all the way from Belgium to the United Kingdom.
(4) Were the goods held for a commercial purpose?
- In the light of our conclusion on the third issue we do not need to consider the fourth but as arguments were put to us we briefly express our views.
- The fourth issue is whether the goods were held for a commercial purpose by the Appellant in the United Kingdom because duty and tax were not paid by the Appellant at the time of his acquisition of the goods.
- As mentioned in paragraph 2 of this Decision, at the hearing the Tribunal asked some questions about the law affecting this issue and Mr Singh asked to make written submissions on this point after the hearing. These written submissions were dated 8th and 15th October and were sent to the Appellant who was given an opportunity to comment on them
62. The legislation relevant to this issue starts with the Finance (No 2) Act 1992 (the 1992 Act). Section 1(1) of that Act provides that Customs and Excise may, by regulation, make provision for fixing the time when the requirement to pay any duty of excise on goods becomes chargeable (the excise duty point). The Tobacco Product Regulations 2001 (the 2001 Regulations), as amended by the Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002, were made under the provisions of section 1(1) of the 1992 Act. The relevant parts of regulation 12 of the amended 2001 Regulations provide:
"12(1) Subject to the provisions of this regulation, the excise duty point for tobacco products is the time when the tobacco products are chargeable with duty
(1A) In the case of tobacco products acquired by a person in another member state for his own use and transported by him to the United Kingdom, the excise duty point is the time when those products are held or used for a commercial purpose by any person.
(1B) For the purposes of paragraph (1A) above –
(d) if the products are not duty and tax paid in the member state at the time of acquisition … those products are to be regarded as being held for a commercial purpose."
- Mr Singh argued that when the Appellant acquired the goods in France they were not duty and tax paid in France and so in accordance with regulation 12(1B)(d) the goods were held for a commercial purpose. The products were chargeable with United Kingdom duty when they were imported into the United Kingdom under section 2(1) of the Tobacco Products Act 1979 which provided that duty was charged on tobacco products imported into the United Kingdom. Mr Singh also argued that under Article 7 of the Directive the excise goods had been released for consumption in Belgium but were held for commercial purposes in France. If French excise duty had been paid then the products could have been imported into the United Kingdom for the own use of the Appellant without payment of any more duty. However, the products were not duty paid in France and so duty was due. He also argued that Article 9 applied and so excise duty was chargeable in the United Kingdom because products released for consumption in Belgium were held for commercial purposes in the United Kingdom. The duty was due from the holder of the products, namely, the Appellant.
- We find Mr Singh's arguments convincing. The scheme of the Directive is that where excise goods are released for consumption in one member state (in this appeal, Belgium) but held for commercial purposes in another member state then duty is chargeable in the member state in which the goods are held from the holder of the products. It seems to us that, on the facts we have found, the goods were held for commercial purposes in France and so duty should have been paid in France. Applying regulation 12(1B)(d) of the amended 2001 Regulations, the goods were also held for commercial purposes in the United Kingdom because the duty and tax was not paid in France by the Appellant at the time of acquisition.
- We therefore conclude that the goods were held by the Appellant for a commercial purpose. We are confirmed in our view because it seems to us that this issue complements the third issue and a finding that the exemption from duty for own use does not apply because the Appellant did not purchase the goods in Belgium, nor pay the duty there, nor transport the goods from there, is consistent with the conclusion that duty is payable on importation to the United Kingdom.
Issue (5) – Was the review decision reasonable?
- The fifth issue is whether the review decision was reasonable.
- For the reasons given above we conclude that the review decision of Customs and Excise was reasonable. We therefore dismiss the appeal.
Decision
- Our decisions on the issues for determination in the appeal are:
(1) that in this appeal we did have jurisdiction to reach our own findings of fact on fresh evidence;
(2) that the Appellant's oral evidence given at the hearing was not to be preferred to that given at his interview at Dover; on the balance of probability we find that the Appellant went to Calais on his own, purchased the goods from a vendor who had probably purchased the goods in Belgium, returned on the Hoverspeed ferry where he put the goods into Hoverspeed bags, and arrived in Dover where he was questioned by Mrs Dalton; thus the facts upon which the review decision were based were most probably correct; however, it was not challenged that the Appellant intended to use the goods personally; that he transported them from Calais into the United Kingdom; and that the quantity of the goods were within the guidelines;
(3) that on the facts we have found the exemption from duty for goods imported for own use did not apply because the Appellant had not purchased the goods himself, nor had he paid duty in another member state, nor had he transported the goods from that member state; that means that the appeal should be dismissed and that we do not have to consider the fourth issue but as arguments were put to us we briefly express our views which are:
(4) that on the facts we have found the goods were held by the Appellant for a commercial purpose and so duty was payable on his importation of the gods into the United Kingdom; and
(5) that the review decision was reasonable.
- The appeal is, therefore, dismissed.
DR A N BRICE
CHAIRMAN
RELEASE DATE: 29 November 2004
LON/2003/8219
- 11.04
