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United Kingdom VAT & Duties Tribunals (Excise) Decisions |
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You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Caldecourt v Customs and Excise [2004] UKVAT(Excise) E00834 (08 December 2004) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00834.html Cite as: [2004] UKVAT(Excise) E834, [2004] UKVAT(Excise) E00834 |
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E00834
EXCISE DUTIES – Restoration of vehicle refused – whether reasonable – yes.
Importation of excise goods for a commercial purpose.
LONDON TRIBUNAL CENTRE
NIGEL CALDECOURT Appellant
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: Peter H Lawson (Chairman)
Lynneth Salisbury
Sitting in public in London on 12 October 2004
Sarabjit Singh, Counsel, for the Commissioners
The Appellant did not appear and was not represented
(a) He was a taxi driver and the vehicle he had travelled in was his taxi.
(b) He had purchased 4 boxes of Cutters Choice, 10 pouches of Amber Leaf, 400 Benson & Hedges cigarettes, 3 bottles of wine and 1 bottle of whisky.
(c) Apart from the Cutters Choice tobacco, the excise goods were for him. The Cutters Choice tobacco was for the taxi drivers' syndicate.
(d) None of the Cutters Choice tobacco was for him as it made his throat dry.
(e) There were 30 tax drivers in the syndicate and they had all paid him £30 each to purchase the tobacco.
(f) All the drivers smoked Cutters Choice tobacco.
(g) The taxi drivers had given him cash for the tobacco before he left.
(h) He had a fare for Ashford and after dropping the passenger off he travelled across to France.
(i) He expected his goods to last him 2-3 weeks per pouch.
(j) He did not know how many cigarettes he got from one pouch of tobacco.
(k) The cigarettes were for "his other half" and they would not last her very long.
(l) The arrangement with the syndicate was a regular thing.
(m) He last travelled to the Continent 4 weeks previously, and on that occasion he purchased "loads of beer and wine from Eastenders".
a) Regulation 4 of The Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 ("the REDS Regulations), Regulation 15 of The Beer Regulations 1993 and Regulation 12 of The Tobacco Products Regulations 2001, each as amended by the Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002, provide that:"(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. (1B) For the purposes of (1A) above -The text above is from The Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992. The text which appears in The Beer Regulations 1993 and(b) "own use" includes use as a personal gift; (c) if the goods (beer, tobacco products) in question are (is) -(i) transferred to another person for money or money's worth (including any reimbursement of expenses incurred in connection with obtaining them), or (ii) the person holding them intends to make such a transfer,those goods (that beer, those tobacco products) are (is) to be regarded as being held for a commercial purpose. (d) if the goods (beer, tobacco products) are (is) not duty and tax paid in the member state at the time of acquisition, or the duty and tax that was paid will be or has been reimbursed, refunded or otherwise dispensed with, those goods (that beer, those products) are(is) to be regarded as being held for a commercial purpose. (e) without prejudice to sub-paragraphs (c) and (d) above, in determining whether excise goods (beer, tobacco products) are (is) held or used for a commercial purpose by any person regard shall be taken of -(i) that person's reasons for having possession or control of those goods (that beer, those products); (ii) whether or not that person is a revenue trader (as defined in section 1(1) of the Customs and Excise Management Act 1979); (iii) that person's conduct, including his intended use of those goods (that beer, those products) or any refusal to disclose his intended use of those goods (that beer, those products); (iv) the location of those goods (that beer, those products); (v) the mode of transport used to convey those goods (that beer, those products); (vi) any document or other information whatsoever relating to those goods (that beer, those products); (vii) the nature of those goods (that beer, those products) including the nature and condition of any package or container; (viii) the quantity of those goods (that beer, those products) and in particular, whether the quantity exceeds any of the following quantities -10 litres of spirits; 20 litres of intermediate products (as defined in Article 17(1) of Council Directive 92/83/EEC/[4]; 90 litres of wine; 110 litres of beer; 3,200 cigarettes; 400 cigarillos (cigars weighing no more than 3 grammes each); 200 cigars; 3 kilogrammes of any other tobacco products.(ix) whether that person financed the purchase of those goods (that beer, those products); (x) any other circumstance that appears to be relevant."
(b) Regulation 16 of the REDS Regulations provides that:"Excise goods, in respect of which duty has not been paid, shall be liable to forfeiture where a breach of regulation 6 above (which states that "excise duty shall be paid before the excise duty point") or any other regulation contained in part IV, V, or VI of these Regulations, or of any condition or restriction imposed by or under such a regulation, relates to those excise goods".(c) Section 49(1) of the Customs and Excise Management Act 1979 ("CEMA") states:"Where -a) except as provided by or under the Customs and Excise Acts 1979, any imported goods, being chargeable on their importation with customs or excise duty, are, without payment of that duty -(i) unshipped in any port;(d) Section 139(1) of CEMA provides that:
those goods shall ... be liable to forfeiture.
"Any thing liable to forfeiture under the Customs and Excise Acts may be seized or detained by any officer or constable or any member of Her Majesty's armed forces or coastguard". (e) Section 141(1) of CEMA states that "where any thing has become liable to forfeiture under the Customs and Excise Acts -(a) any ship, aircraft, vehicle, animal, container (including any article of passengers' baggage) or other thing whatsoever which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture, either at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and (b) any other thing mixed, packed or found with the things so liable; shall also be liable to forfeiture."(f) Section 152 of CEMA establishes that:"The Commissioners may, as they see fit - ... (b) restore, subject to such conditions (if any) as they think proper, anything forfeited or seized under the Customs and Excise Acts".(g) Finally, section 15(1) of the Finance Act 1994 provides that:"Where the Commissioners are required in accordance with this Chapter to review any decision, it shall be their duty to do so and they may, on that review, either - (a) confirm the decision; or (b) withdraw or vary the decision and take such further steps (if any) in consequence of the withdrawal or variation as they may consider appropriate."
(a) The Appeal relates solely to the seizure of the vehicle.
(b) The Appellant accepts that goods for non-travellers for which payment (even at cost price) had been received technically amounts to a commercial transaction. The Appellant was unaware of this and offers his naivety as an explanation.
(c) The Appellant did not deliberately mislead officers as to the contents of the vehicle. He did not accept the Officer's version of events, and the notebook was unsigned.
(d) The question of how many boxes the goods would have filled is subjective and would depend on the size of the boxes. The question of whether one person could carry 24 kilograms of goods is subjective, but it is not accepted that it is a weight that one person could not carry.
(e) The Appellant's alleged inaccuracy about the date of his last visit was irrelevant.
(f) The purchase of one type of tobacco made administration easier, and had items been purchased for resale there would have been a variety of types of tobacco.
(g) The Respondents placed great reliance upon the large quantity of goods, but this was a subjective issue and there was still a substantial amount of room in the vehicle in which items could have been purchased and concealed.
(h) The valuation of the vehicle was not accepted, as the Appellant paid £6,500 for it a relatively short period earlier.
(i) Proper and adequate consideration was not given to the hardship suffered by the Appellant in losing his vehicle. The Appellant was unable to work as a taxi driver and had lost his accommodation as a result.
(j) The refusal to restore the vehicle was disproportionate.
(a) The Appellant was intercepted by a Customs Officer in uniform and must have known that he was expected to answer questions truthfully and to disclose the full quantities of any excise goods carried with him in the vehicle. However, despite the Officer's clear and unequivocal questions, the Appellant stated that all the tobacco he had to declare was in a bag in the back seat of the vehicle, when in fact there were 4 boxes of tobacco in the boot of the vehicle.
(b) When interviewed, the Appellant provided an inaccurate answer when questioned about his previous travel. He stated that he had last travelled to the Continent 4 weeks previously, when his last trip had in fact been just over 2 weeks before the seizure. This cast doubt over the Appellant's credibility.
(c) The Appellant's credibility was further undermined by the account of the seizure he gave to his representatives, as evident from their letter to the Commissioners dated 14 May 2003, when he wrongly informed them that he had told the Officer when intercepted that there were further goods in the boot, and that the goods filled two boxes when they actually filled four boxes.
(d) The Appellant admitted that he was importing the 24 kilograms of tobacco for a commercial purpose within the meaning of Regulation 12(1B)(c) of The Tobacco Products Regulations 2001, as amended by the Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002.
(e) It was not plausible that the 29 taxi drivers the Appellant claimed he was purchasing the tobacco for all smoked the same brand of tobacco, namely Cutters Choice. If the Appellant really was purchasing the tobacco for 29 other people, it is likely that he would have purchased a variety of brands. The more plausible explanation for the Appellant importing a single brand of tobacco, especially given that he did not smoke it himself, was that he intended to sell it on a commercial, profitable basis.
(f) Contrary to the Appellant's assertions, all the Officer's questions put to him were accurately recorded and the Appellant signed the Officer's notebook twice to indicate that it represented a true account of the interview.
(g) In light of the foregoing, the Commissioners reasonably concluded that the goods were held for a commercial purpose. As such, the goods were liable to forfeiture under section 49(1)(a) of CEMA, and were appropriately seized pursuant to section 139(1) of CEMA.
(h) Alternatively, the goods were liable to forfeiture under Regulation 16 of the REDS Regulations 1992, as they were held for a commercial purpose and duty had not been paid or guaranteed in advance in accordance with those Regulations. Therefore, the goods were properly seized under section 139(1) of CEMA.
(i) The goods mixed, packed or found with the goods liable to forfeiture were themselves liable to forfeiture under section 141(1)(b) of CEMA, and were properly seized under section 139(1) of CEMA. The vehicle was liable to forfeiture under section 141(1)(a) of CEMA, and so it too was appropriately seized in accordance with section 139(1) of CEMA.
(j) In relation to the restoration of the vehicle, the Commissioners duly followed their policy that seized vehicles would not be offered for restoration, unless the traveller could demonstrate that the goods were to be supplied at purchase price and not for profit, or for first offences involving small quantities of excise goods, when restoration would be considered.
(k) The Commissioners further duly considered the case of Lindsay v Customs and Excise Commissioners [2002] 1 WLR 1766.
(l) With regard to the Appellant's claim that he intended to supply the goods at purchase price and not for profit, the Respondents reasonable concluded that all or most of the goods were likely to be sold for profit, especially given the Appellant's dishonesty in failing to declare all of the excise goods. Further, the Appellant imported a large quantity of excise goods, worth over £4,000 in the UK shops, which was likely to damage legitimate trade. Therefore, restoration of the vehicle was not appropriate under Lindsay or otherwise under the Respondents' policy.
(m) Alternatively, even if the Appellant's claim that goods were to be supplied on a cost basis was accepted, restoration of the vehicle under Lindsay was still not appropriate, as the value of the revenue evaded (£2,484.86) was proportionate to the trade value of the vehicle on the date of the decision not to offer the vehicle for restoration (£3,150).
(n) Further, a prudent traveller would have made himself aware of the Respondents' regulations recited above prior to travel. Therefore, the Appellant's claim that he did not know what he was doing was unlawful, even if true, did not provide a basis upon which the Respondents could offer restoration of the vehicle.
(o) The Respondents further determined that there were no exceptional circumstances in the Appellant's case which justified departure from their policy. It is contended that this decision was both reasonable and proportionate in all the circumstances.
(i) There is no evidence of previous smuggling.
(ii) The Appellant did not realise that what he was doing was unlawful. He was not, as far as he was concerned, acting in a commercial capacity. He purchased a substantial quantity of tobacco on behalf of a number of his work colleagues, all of whom had contributed in advance. He did not set out to make a profit in any way and would in fact not have done so. There was no evidence that he was paid to make the journey.
(iii) The Appellant did not accept that the goods were for a commercial purpose; they were simply purchased for a group of friends.
(i) He did not accept that the vehicle was used to transport a substantial quantity of excise goods. The goods concerned filled only 2 boxes and could easily have been carried by one person.
(ii) The Appellant did not accept that during the initial interception he failed to declare the full quantity of excise goods being carried. As he left the vehicle he explained to the Customs Officers that there were goods on the back seat and that there were further goods in the boot.
(iii) During the questioning it was established that payment had been received by the Appellant from non-travellers in order to purchase goods. This was, the solicitors suggested, an indication of the Appellant's naivety. He had no understanding that what he was doing was in effect unlawful.
(i) He is a taxi driver. Without his vehicle he has been unable to work. He has been reduced to claiming State Benefit.
(ii) The vehicle was purchased by him a relatively short time ago for £6,500. It was purchased on the basis of a loan, of which more than £5,000 remains outstanding, payable over the next 3 years. He continues to have an outgoing of approximately £200 per month in respect of this loan and no way of meeting the payments.
(iii) The vehicle had a hackney carriage plate and was maintained to a high standard for that reason.
(iv) As a result of being unable to work, the Appellant was unable to meet the cost of his accommodation and was having to move from a self-contained flat to the spare room at a friend's house.
(a) The Appellant was intercepted by a Customs Officer in uniform and must have known that he was expected to answer questions truthfully and to disclose the full quantities of any excise goods carried with him in the vehicle. However, despite the Officer's clear and unequivocal questions, the Appellant stated that all the tobacco he had to declare was in a bag in the back seat of the vehicle, when in fact there were 4 boxes of tobacco in the boot of the vehicle.
(b) When interviewed, the Appellant provided an inaccurate answer when questioned about his previous travel. He stated that he had last travelled to the Continent 4 weeks previously, when his last trip had in fact been just over 2 weeks before the seizure. This cast doubt over the Appellant's credibility.
(c) The Appellant's credibility was further undermined by the account of the seizure he gave to his representatives, as evident from their letter to the Commissioners dated 14 May 2003, when he wrongly informed them that he had told the Officer when intercepted that there were further goods in the boot, and that the goods filled two boxes when they actually filled four boxes.
(d) The fact that the Appellant was dishonest and misled the interviewing Officers, and has subsequently provided incorrect information to his representatives, indicates that this explanation for importing the goods was not genuine, and the likelihood was that the tobacco was to be sold on for profit.
(e) It was not plausible that the 29 taxi drivers the Appellant claimed he was purchasing the tobacco for all smoked the same brand of tobacco, namely Cutters Choice. If the Appellant really was purchasing the tobacco for 29 other people, it is likely that he would have purchased a variety of brands. The more plausible explanation for the Appellant importing a single brand of tobacco, especially given that he did not smoke it himself, was that he intended to sell it on a commercial, profitable basis.
(f) Contrary to the Appellant's assertions, all the Officer's questions put to him were accurately recorded and the Appellant signed the Officer's notebook twice to indicate that it represented a true account of the interview. The Tribunal is asked to prefer the account of the interview as set out in these contemporaneous notebooks.
(a) The Respondents properly followed their policy that restoration of vehicles would not be considered except where the traveller could demonstrate that the goods were to be supplied at purchase price and not for profit, for first offences involving small quantities of excise goods, or if exceptional circumstances were present.
(b) The Respondents were entitled to impose a penalty on the Appellant for being in breach of the statutory requirements governing commercial importations, as otherwise the statutory requirements would be rendered meaningless and inoperable.
(c) If the Respondents' policy was to offer seized vehicles for restoration upon payment of the outstanding duty on the goods, in cases of for-profit commercial importations the deterrent to prevent breaches of the statutory requirements would be weak, and the penalty for breaches would be minimal and non-effective.
(d) The Respondents duly considered the case of Lindsay v Commissioners of Customs and Excise [2002] EWCA Civ 267, in which the Court of Appeal held that the Respondents' policy of non-restoration of vehicles used for commercial smuggling was lawful, stating that:
"63. Those who deliberately use their cars to further fraudulent commercial ventures in the knowledge that if they are caught their cars will be rendered liable to forfeiture cannot reasonably be heard to complain if they lose their vehicles. Nor does it seem to me that, in such circumstances, the value of the car used need be taken into consideration. Those circumstances will normally take the case beyond the threshold where that factor can carry significant weight in the balance. Cases of exceptional hardship must always, of course, be given due consideration."
64. The Commissioners' policy does not, however, draw a distinction between the commercial smuggler and the driver importing goods for social distribution to family or friends in circumstances where there is no attempt to make a profit. Of course, even in such a case, the scale of importation, or other circumstances, may be such as to justify forfeiture of the car. But where the importation is not for the purpose of making a profit, I consider that the principle of proportionality requires that each case should be considered on its particular facts, which will include the scale of importation, whether it is a 'first offence', whether there was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship that will be caused by forfeiture. There is open to the Commissioners a wide range of lesser sanctions that will enable them to impose a sanction that is proportionate where forfeiture of the vehicle is not justified."
(e) In light of the Respondents' conclusion that the Appellant intended to supply the goods for profit, non-restoration was a proportionate response under paragraph 63 of Lindsay.
(f) Alternatively, even if the Appellant's claim that goods were to be supplied on a cost basis was accepted, non-restoration of the vehicle was still appropriate under paragraph 64 of Lindsay, as the value of the revenue evaded (£2,484.86) was broadly proportionate to the trade value of the vehicle on the date of the decision not to offer the vehicle for restoration (£3,150).
(g) Further, the Appellant imported a large quantity of excise goods, worth over £4,000 in the UK shops, which was likely to damage legitimate trade, and he was dishonest in failing to declare all of the excise goods. These factors militated against restoration.
(h) The issue of exceptional circumstances was considered and it was deemed that there were no exceptional circumstances in the Appellant's case which justified restoration of the vehicle, above and beyond those circumstances commercial smugglers should expect.
(i) The Appellant's claim that he did not know what he was doing was unlawful, even if true, did not provide a basis upon which the Respondents could offer restoration of the vehicle. A prudent traveller would have made himself aware of the relevant regulations prior to travel.
(j) The decision struck a fair balance between ensuring compliance with UK revenue law and protecting revenue on the one hand, and the right to enjoyment of property under Article 1 of Protocol 1 of the European Convention on Human Rights on the other.
"shall be confined to a power, where the tribunal are satisfied that the Commissioners or other person making the decision could not reasonably have arrived at it, to do one or more of the following, that is to say -(a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct;
(b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision; and
(c) in the case of a decision which has already been acted on or taken effect and cannot be remedied by a further review, to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future".
LON/03/8215
