DECISION
1. The
Appellant was appealing against a Decision taken on re-rereview against the
refusal of the Commissioners to restore to her certain items of jewellery
seized at Birmingham Airport Cargo Centre on 6 August 2007.
2. When the
case was called on the hearing, the Appellant was not present and was not
represented. In all previous hearings she had attended with Counsel so we went
to some lengths before deciding to proceed in her absence. The decision before
us was a re-rereview dated 27 September 2011 which had been served by post on
her then solicitors, Messrs Carltons (Mr Chohan acting). The hearing notice
had also been served on Carltons as the authorised representatives on 7
December 2011. Carltons had notified the Tribunal that they were without
instruction and coming off the record by letter dated 3 January 2012. On the
morning of the hearing we did not know whether the Appellant had herself seen a
copy of the re-rereview letter or whether she had been told of the hearing
date. Mr Griffiths, counsel for the Commissioners, and the Tribunal Centre
both spoke to Mr Chohan who was very helpful and was able to confirm that he
had given a copy of the 27 September letter to the Appellant and he had also
advised her of the date and time of the hearing. We were therefore satisfied
that it would be perfectly fair for us to proceed in her absence and that it
would be in the interests of justice so to do.
3. There is
quite a history to the Appellant’s appeal and to understand fully the issue
before this tribunal it is necessary to record this history in some detail.
Chronology and the first Tribunal Hearing
4. On 6
August 2007 at Birmingham Airport Cargo Centre Customs Officers intercepted a
package addressed to the Appellant from Dubai. The C3 Customs declaration with
the package stated that it contained 36 children’s dresses and four women’s
gowns. The Officers discovered 17 gold bangles, eight pendant sets consisting
of gold pendants, pairs of earrings and rings; and a five-piece silver earring
and ring set in three polythene bags of clothing within the package. The
Officers seized the jewellery.
5.
The Appellant, having instigated and then withdrawn condemnation
proceedings appealed against the Commissioners’ refusal to restore the
jewellery to her, this refusal being contained in a review letter of Officer
Hodge dated 20 December 2007. The Appeal came before the Tribunal (Michael
Tildesley OBE Judge) on 11 December 2009, the Decision being released on 19
January 2010. In paragraph 6 of the Decision the Tribunal set out their
findings of fact and in paragraph 7 they set out what they concluded from those
facts. We now set out verbatim those two paragraphs.
“6. The
Facts Found
The Tribunal found the following facts:
The Appellant was a Somalian
National seeking asylum in the United Kingdom.
The Appellant’s friend, Katro, was due to get married in
the United Kingdom. The wedding ceremony took place on 10 August 2007 at the
Regent Park Banquet Hall in Birmingham.
According to Somalian customs, the wedding would be
celebrated over three days, followed by a gathering of the female guests with
the bride at which gifts would be given to the bride.
The Appellant and her three friends, Nimro, Rado, and
Bakeen decided to give jewellery as a wedding present to Katro. They also
agreed to purchase jewellery and gowns for themselves to wear at the wedding,
and dresses for their children. Between them they had 24 children. of whom 15
were girls.
The Appellant and her friends decided to ask the
Appellant’s aunt, Safiya Aden, to buy the dresses and jewellery in Dubai where the prices were much cheaper than in the United Kingdom. The Appellant’s
friends forwarded $2,500 to the Appellant’s aunt so that she could purchase the
goods. The aunt gifted the Appellant with her share of the dresses and
jewellery.
On 1 August 2007 the aunt took the goods into the Offices
of FEDEX in Dubai for onward transportation to the United Kingdom. According to
the Appellant, the aunt left it to FEDEX employees to complete the necessary
documentation with the aunt paying FEDEX the amounts due including the duties,
if any, on the goods. The aunt was illiterate and did understand the
documentation which was completed in English. The FEDEX employees, however,
included amongst their number, Somalian speaking individuals.
The documentation sent with the package consisted of the
package label, a pro-forma invoice and a C3 Customs Declaration. The package
label addressed to the Appellant named the goods as children’s dress, 70 per
cent polyester and 30 per cent cotton, and woman’s long gown dress, 100
per cent polyester, with a Customs value of $152. The pro-forma invoice
likewise referred to the goods as children’s dress and long gowns (40 items)
with a value of $152 plus £172 for freight charges. The original invoice
documentation did not record the jewellery. The C3 Customs Declaration was
completed in Dubai, and made no mention of the jewellery. The C3 document also
contained two further errors, the Appellant was declared to be a diplomat which
she was not, and the box dealing with goods obtained under a tax free scheme
upon which duty was payable was ticked no.
On 6 August 2007 a Customs Officer searched the package
on its arrival into the United Kingdom. The Officer discovered the jewellery
within three polythene bags of clothing. He seized the jewellery because it had
not been declared. The clothing was allowed to proceed. The Officer did not
record that the jewellery was concealed.
On being informed by HMRC that the jewellery was being
held at Birmingham Airport, the Appellant contacted her aunt in Dubai. According to the Appellant, FEDEX accepted responsibility for failing to declare the
jewellery, and purportedly sent a letter of apology by fax to the Appellant. No
letter of apology was adduced in evidence before the Tribunal.
The Appellant appeared to rely on a commercial invoice
exhibited at page 18 of the bundle. This invoice recorded the Appellant’s aunt
as the exporter of the goods, and the Appellant as the consignee. The invoice
itemised four categories of goods: the children’s dresses, the long gowns, 16
bracelets valued at $1200, and eight Jondals’ sets (one ring, one necklace and
two earrings) valued at $1800. The quantity of jewellery on the invoice did not
correspond with that seized by HMRC. The signature on the invoice was
indecipherable with no information about the identity of the signatory. There
was nothing on the face of the invoice linking it with FEDEX. Further the
Appellant produced no document evidencing such a link.
HMRC arranged for an independent valuation of the
jewellery, which came out at £5,713.16 as at 12 October 2007. The duty owed on
the jewellery was £1,167.62.
The Appellant had offered to pay the outstanding duty in
return for the jewellery. HMRC declined the offer.
7. The Tribunal decides the following on the
facts found:
There had been a failure to declare the jewellery on the
documentation in respect of its importation into the United Kingdom.
The Appellant did not satisfy the Tribunal on the balance
of probabilities that FEDEX employees in Dubai were responsible for the error
regarding the non-declaration of jewellery items. The Appellant’s explanation
that her aunt was illiterate and left the form filling to FEDEX employees was
undermined by the admission that FEDEX employed Somalian speaking individuals.
Further, the Appellant did not provide documentary evidence from FEDEX
admitting responsibility for the error. There was no persuasive evidence
linking FEDEX with the invoice at page 18 of the bundle. Finally, the
Appellant’s account of what happened in Dubai was second hand and of no
evidential value.
The Tribunal is satisfied that the jewellery was
purchased for the personal use of the Appellant and her friends, and as a
wedding gift. The Tribunal finds that the wedding took place on the 10 August
2007. The Appellant supplied photographs of the wedding ceremony in which she
identified her friends, and a receipt dated 10 August 2007 for the hire of
Regent Park Banquet Hall. There was a close relationship in time between the
purchase of the jewellery and the date of the wedding. Finally, the Tribunal
considers the Appellant to be a truthful witness on the reasons for the
purchase of the jewellery.
The Tribunal finds no persuasive evidence that the
jewellery had been concealed within the package. HMRC Brief for the
condemnation proceedings exhibited a page 37 in the bundle alleged that the
jewellery had been concealed or packed in a manner intended to deceive an
Officer. Officer Hodge, the review Officer, fairly testified that she could
find no corroboration for the allegation of concealment. The notebook of the
Officer who seized the jewellery did not record such an allegation. Officer
Hodge was unable to contact the Officer as he has now retired from the Service.”
6.
Whilst agreeing with the bulk of the review Decision, the Tribunal did
not agree with Mrs Hodge in two respects. Mrs Hodge had concluded that the
jewellery was imported for commercial disposal whereas the Tribunal accepted
that it was for the Appellant’s personal use and as a wedding gift. Secondly
she believed the jewellery had been deliberately concealed whereas the Tribunal
found there was no persuasive evidence of concealment. In these two respects,
the Tribunal held Mrs Hodge’s decision to have been unreasonable and in line
with its jurisdiction, the Tribunal directed a re-review.
7.
The re-review was carried out by Officer Brenton and was dated 3 March
2010. Adopting the Tribunal’s findings, Mr Brenton also refused restoration
giving particular weight to paragraphs 7(1), 7(2) and 7(4) of the Tribunal
Decision. He was also particularly influenced by the fact that the so-called
letter of apology from FedEx had still never been produced. He referred to the
Appellant having perjured herself if in fact that letter was found not to
exist.
8.
The Appellant appealed against Officer Brenton’s decision and this is
the appeal which is now before us.
The Current Appeal
9.
The appeal first came up for hearing on 22 February 2011. The Appellant
announced at the hearing that the letter of apology had been found and that a
copy was with her solicitors. Her counsel, Mr Brunt, knew nothing of this and
neither did Officer Brenton. We were told that the original letter had been
sent to the Appellant’s first set of solicitors who had sent a copy to the
Appellant’s husband which he had lost. The Appellant’s husband had found the
letter after the last Tribunal hearing and had at some stage given it to
Carltons. After a lengthy adjournment whilst enquiries were made of Carltons a
copy arrived at the Court and we, and more importantly, Mr Brenton saw it for
the first time. The document was a faxed copy of the “Commercial Invoice”
referred to in paragraph 6(10) of the first Tribunal Decision. Added on the
bottom of it were the words
“We apologize that we did not include the
jewellery in the list of the invoice”
This addendum was not signed or dated and there was no
indication who had written it or how it had come to be written but the fax date
was 3 October 2007; i.e. two months post seizure.
10.
The hearing was adjourned to allow the Appellant to establish the
authenticity of the apology which, without more, clearly could not have been
accepted by the Tribunal or the Commissioners.
11.
The hearing resumed on 25 August 2011, nothing having been heard by the
Commissioners from the Appellant until 21 August when they received an
affidavit from a Mrs Halima Abdi Warfa annexing a further copy of the annotated
commercial invoice. The affidavit read:
“I Mrs Halima Abdi Warfa,
care of High Light Air Freight, PO Box 251348 Dubai, UAE make this statement in
connection with the above case
1. I
am making this statement to clarify the authenticity of a commercial invoice,
bill number 9178 9488 7948. (‘The document’) This document is attached to my
statement and marked as exhibit 1.
2. I
am a director of High Light Air Freight and Shipping Services, my office
contact number is +9714 225 2503. My company as a contract with FEDEX who we
put all our work through them.
3. The
document was produced by my employer, Mark Torres on the 1 August 2007.
Unfortunately he omitted to include the Jewellery in the document under the
full description of goods section.
4. On
the 3 October 2007 I wrote on the document under the full description of goods
section the following “We apologise that we did not include the jewellery in
the list of the invoice.” The amended document was then faxed to the Appellant
and her legal representatives on the same day. The original document was also
sent to her solicitors by FEDEX.
5. I
confirm that the copy of the document that is attached to this statement is a
true copy of the original document that I amended. “
Mr Brenton had, yet again, not seen this document until
the day of the hearing and it quite clearly raised more questions than it
answered. Yet again we had no alternative but to adjourn to allow Mr Brenton
to make enquiries and on our direction to carry out a re-rereview in the light
of all the documentation received since his earlier review. His re-rereview was
dated 27 September 2011 and for the reasons which we set out in the following
paragraphs, he again refused restoration.
The re-rereview
12.
First, Mr Brenton pointed out that from the date of the seizure until 22
August 2011, it had always been the Appellant’s case and confirmed in a witness
statement before the first Tribunal from the aunt that all the documentation
had been completed by FEDEX when the aunt went into their offices. The witness
statement of Mrs Warfa quite clearly contradicts this. If her evidence is to
be believed, FEDEX had nothing to do with the completion of the documents and
the error was not theirs.
13.
Secondly, Mr Brenton highlighted the incorrect assertion in the C3 that
the Appellant was a diplomat. Without more, this could be seen as an error but
in the context of the form, Mr Brenton dismissed this possibility. Page 2 of
the C3 contains a list of tick box questions. In every one, bar this one, the
‘No’ box had been ticked. Only in response to the question whether the
recipient was a diplomat, had the ‘Yes’ box been ticked. Mr Brenton saw this
answer as a quite deliberate attempt to have the goods imported without
interception and examination.
14.
Thirdly, Mr Brenton analysed the so called ‘commercial invoice’. It had
been produced originally to the UKBA as an Air Waybill which it was not. There
were no company stamps or any other indication on it that it had been completed
by High Light. The shipper/exporter was shown as the aunt and the address
given for the aunt were the contact details for High Light. The consignee was
named as the Appellant. The quantity of jewellery listed did not tally with
the jewellery found on interception and to a layman, the handwriting on this
‘Commercial invoice’ was identical to that on the C3 form.
15.
Fourthly, Mr Brenton recited that all the previous evidence had been to
the effect that the fault had been that of FEDEX and their Somalian speaking
employee. However, for the first time in Mrs Warfa’s statement it appears that
it was a Mark Torres of her firm who incorrectly completed the C3 form. On 1
September 2011, Mr Brenton spoke to FEDEX in Dubai and was able to establish
that the only staff working on their premises are employees of FEDEX. No-one
from High Light works within their premises and although FEDEX did have an
account with High Light, that account had been suspended. Mr Brenton had also
spoken to the Mr Torres referred to in Mrs Warfa’s statement. Mr Torres, quite
understandably, had no recollection of this transaction but told Mr Brenton
that he would always complete all documentation as accurately as possible as he
was aware of the consequences of incorrect declarations. He would write down
exactly what the customer related to him and he could never remember omitting
anything. Mr Brenton formed the view that Mr Torres was truthful and that his
answers were as accurate as he could remember. Mr Brenton also obtained a
sample of Mr Torres’ writing and such was the similarity that he took the view
albeit as a layman, that Mr Torres did complete the C3. Such was the similarity
in the writing, Mr Brenton was also firmly of the view that it was Mr Torres
who completed the addendum on the commercial invoice accepting the error. Mr
Brenton believed that he was instructed to do this, probably by Mrs Warfa.
16.
Mr Brenton had been asked by the Tribunal specifically to consider the
veracity of Mrs Warfa’s affidavit. Because Mr Brenton was firmly of the view
that it was Mr Torres who had written the addendum and not Mrs Warfa he could
not accept the truthfulness of her statement.
17.
In conclusion, Mr Brenton stated his belief that the importation had
been a deliberate act of evasion and that the production of the commercial
invoice was an attempt to distance the Appellant from any involvement in the deceit.
He believed that she was fully complicit in it and that her previous evidence,
both under oath to the first tribunal and in the form of witness statements had
been incorrect. Having found that there had been a deliberate failure to
declare the jewellery, he had no hesitation in saying it should not be
restored.
Our Conclusions
18.
Our jurisdiction is limited to considering the reasonableness of Officer
Brenton’s refusal to make restoration. We are not able to substitute our own
decision for that of Mr Brenton and only if we consider his decision to have
been unreasonable can we allow the appeal. We must be satisfied that Officer
Brenton considered, and gave proper weight to all relevant factors and that he
took into account nothing that was irrelevant.
19.
We find the re-rereview letter written by Mr Brenton to be clear and
well argued. He has made extensive enquiries and has formed a reasonable and
balanced view of the outcome of those enquiries. He is clearly correct in his
view that the oral and documentary evidence is contradictory and unreliable.
His conclusion that there was a deliberate attempt to import the jewellery
without payment of duty is, in our view, a totally reasonable and almost
certainly correct view. What followed the importation looks so like an attempt
to cover up the initial deceit that again his view cannot be faulted.
20.
There remains the question of the Appellant’s involvement. There are
only two possibilities. She was either a knowing party to the deceit or she
was its innocent victim, accepting without question and repeating what she had
been led by her aunt to believe to be the truth. We find this latter scenario
is improbable and indeed she was not present before us to put that case to us.
Mr Brenton concluded that she was a knowing participant. To reach this view he
took into account all the available evidence drawing from it logical and
coherent conclusions. His view that the Appellant was a culpable participant
in a deliberate attempt to import jewellery without the payment of duty is not
a decision which can be seen to be unreasonable. Given the reasonableness of
his view, it is clearly fair and proportionate to refuse restoration.
21.
The appeal is dismissed.
22. This document contains full
findings of fact and reasons for the decision. Any party dissatisfied with this
decision has a right to apply for permission to appeal against it pursuant to
Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules
2009. The application must be received by this Tribunal not later than 56
days after this decision is sent to that party. The parties are referred to
“Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)”
which accompanies and forms part of this decision notice.
TRIBUNAL JUDGE
RELEASE DATE: 4 April 2012
