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	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 >> McNicholl v Revenue & Customs [2007] UKVAT(Excise) E01017 (02 February 2007) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2007/E01017.html Cite as: [2007] UKVAT(Excise) E01017, [2007] UKVAT(Excise) E1017

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E01017

EXCISE DUTY – Hydrocarbon Oil Duties Act 1979 – Seizure of vehicle under CEMA 1979 – Restoration of vehicle subject to payment of penalties levied under FA 1994 – Appeal against restitution penalties notice – Appeal dismissed

BELFAST TRIBUNAL CENTRE

SINEAD McNICHOLL Appellant

and –

THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: I W HUDDLESTON (Chairman)

MRS J WHITESIDE

Sitting in public in Belfast on 21 July 2006

The Appellant did not appear

Mr James Puzey, BL, for the Respondents

© CROWN COPYRIGHT 2007


 


DECISION Under Rule 26
1. Appeal

This appeal is against a deemed decision to confirm the offer to restore a vehicle ("the Vehicle") (registration number P753 RHM) subject to payment by the Appellant of an amount of £505 (Five hundred and five pounds).

The Appellant did not appear and accordingly the Tribunal decided to continue pursuant to Rule 26 of the VAT Tribunals Rules 1986 ("the Rules").

2. Background

The Vehicle was stopped at 11.15 on the 29^th April 2005 and tested for duty rebated fuel ("red diesel"). It was found that there were traces of red diesel and, accordingly, the Vehicle was seized under Section 139 of the Customs and Excise Management Act 1979, but was immediately offered back to the Appellant subject to the payment of a restoration fee of £505.00, which was immediately paid by the Appellant's father, Mr. Malachy McNicholl.

The penalty notice served on that occasion identified two separate amounts of £250.00. The first amount was levied for a breach of Section 13(1) of the Hyrocarbon Oil Duties Act 1979 ("the 1979 Act"). The second was purportedly levied for a breach of Section 13(4) of the 1979 Act. The balance (£5) was attributed to the unpaid duty on the fuel itself (calculated at the rate of 50 pence per litre for an amount of 10 litres).

Prior to the hearing of this case, Counsel for the Respondent conceded that the £250 penalty levied under S.13(4) had been incorrectly levied.

The case before the Tribunal, therefore, was limited solely to the £255.00 (being the balance of the amount claimed on the Restitution Penalty Notice), calculated and levied pursuant to Section 9 of the Finance Act 1994.

3. Decision

The Tribunal, having heard Mr. Puzey, Counsel for the Respondents, and having considered the Appellant's letter of the 9^th May 2005 and the documentation generally, did not feel that, on the facts of the case, there was a reasonable excuse such as would bring the case within Section 10 of the Finance Act 1994, and that therefore the penalty notice would be upheld and the Appeal dismissed.

In relation to the matter of costs, no order was made, but the Respondents reserved the right to make an application for costs at the trial of any subsequent proceedings in this Appeal.

Pursuant to Rule 26(3) of the Rules the Appellant can apply to the above Tribunal Office for this decision to be set aside on such terms as the Tribunal thinks fit. The Appellant must make her application within 14 days of the date that this decision is released and when the application comes on for hearing she must attend the hearing.

IAN HUDDLESTON CHAIRMAN RELEASED: 2 February 2007

LON/05/8119