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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 >> Wingrove v Customs and Excise [2004] UKVAT(Excise) E00803 (21 October 2004) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00803.html Cite as: [2004] UKVAT(Excise) E00803, [2004] UKVAT(Excise) E803

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E00803

EXCISE DUTIES — traveller arriving in UK with excise goods — goods and car used for transport seized — restoration of goods refused — review upholding refusal to restore goods but offering restoration of car on terms — re-review directed by tribunal — restoration of car on terms offered again — appellant unsatisfactory witness — decision on review reasonably reached — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

KENNETH WINGROVE Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Colin Bishopp (Chairman)

Sitting in public in Birmingham on 1 October 2004

The appellant in person

James Puzey of counsel instructed by the solicitor for HM Customs and Excise for the respondents

© CROWN COPYRIGHT 2004


 


DECISION
1. On 9 July 2002 the appellant Kenneth Wingrove arrived at Dover from France, on a cross channel ferry, in his Citroen ZX car. He was accompanied by two friends, a Mr Kirby and a Mr O'Neill. The three travellers had with them a quantity of excise goods. They were intercepted for reasons of which I am unaware. They were unable to persuade the Customs officers who intercepted them that the goods were for their own use (which was the test applied at that time) and the goods and car were seized.
2. Mr Wingrove did not cause the Commissioners to commence condemnation proceedings but he did ask that the car and his share of the goods be restored to him. That request was refused. He then asked that the refusal be reviewed and a review was duly carried out; the result was that the refusal to restore his goods and car was confirmed. The outcome of that review was communicated to him by a letter of 20 September 2002. However, shortly afterwards the Commissioners modified their policies in the light of the decisions of, first, the Divisional Court and thereafter the Court of Appeal in R (Hoverspeed) v Customs and Excise Commissioners [2003] STC 1273. They voluntarily carried out a further review, the result of which was that they remained unwilling to restore the excise goods, but were willing to restore Mr Wingrove's car, on terms. The terms were the payment of a sum equivalent to the UK duty which would have been payable on the goods. By this time, however, Mr Wingrove's car had been disposed of and the Commissioners offered instead compensation of its value (which has been agreed at £1255). The duty was calculated at that time to be £1055.97 leaving a balance of £199.03; the Commissioners thus offered to pay that net sum to Mr Wingrove. He refused their offer and appealed to the tribunal against the decision.
3. His appeal came before the tribunal (but not before me) on 8 March 2004. Mr Wingrove was unable to explain to me exactly what had happened on that occasion and James Puzey of counsel, who represented the Commissioners on this occasion, had not represented them on that and he too did not know what precisely had occurred. It appears, however, that the tribunal did not hear evidence, but allowed Mr Wingrove's appeal, one assumes by consent, and directed a further review. The direction goes no further – in particular it does not require the Commissioners to take any identified matter into account.
4. The further review was carried out by Mrs Hilda Marshall and her decision, communicated by a letter to Mr Wingrove of 13 April 2004, was the same, namely that the Commissioners should pay compensation of the value of the vehicle on the basis that Mr Wingrove would forfeit out of it the duty due on his goods. Mrs Marshall recalculated the duty and came to a smaller sum, £905.93, with the result that the net amount offered to Mr Wingrove was increased to £349.07. He was, again, dissatisfied and he made a further appeal to the tribunal.
5. When his appeal came before me Mr Wingrove represented himself and the Commissioners were represented, as I have said, by Mr Puzey who provided me with copies of the relevant documents. I heard evidence from Mr Wingrove. Mr Puzey called no oral evidence but I had a brief statement from Mrs Marshall (which did no more than confirm the contents of her letter to Mr Wingrove) and copies of the notebooks of the officers who interviewed Mr Wingrove and his travelling companions at Dover. Mr Wingrove accepted that the notes of his own interview contained a fair record of what he had said. The facts as I find them from that evidence are these.
6. When the travellers were intercepted they were found to have in their possession 20kg of hand rolling tobacco, 3400 cigarettes, 250 cigars and moderate quantities of alcoholic drink. Mr Wingrove is recorded to have said that one box of the hand rolling tobacco — containing 6kg — 1600 cigarettes and 100 of the cigars were his. One of his travelling companions, Mr Kirby, had first said that one box of tobacco, also containing six kilograms, was his but later, claiming to have been confused, he said that two boxes were his. He then changed his mind and said that he and Mr Wingrove were to share the second box; this point was put to Mr Wingrove, during the course of his interview, and he accepted that he might take that half box. He said that the cigarettes were for himself and his share of the hand rolling tobacco for his wife, though he then added that he would give away some of the tobacco. He explained that he trained racehorses, and that he would expect to give a few packs of tobacco to the jockeys; in his evidence he expanded on that by telling me that while jockeys were paid to ride horses in races, they were not paid to visit the horses in the stables prior to the race and he thought it appropriate, as a matter of ordinary hospitality and in recognition of their visiting the stables without reward, to give them a small token, such as a packet of tobacco and a drink.
7. Mr Wingrove was able at Dover to give an estimate of his own consumption of cigarettes, but said he did not know how much his wife smoked. He thought, however, that the tobacco and cigarettes would last about a year. He told me that both he and his wife had given up smoking shortly after his goods were seized in July 2002, partly in consequence of that seizure and partly because they were conscious that they should not expose their five young children to their tobacco smoke.
8. In his letters to the Commissioners seeking restoration Mr Wingrove expanded on his proposed use of the tobacco. Most would have been smoked by his wife but he would, he said, give some of it not only to the jockeys but also to the owners of the racehorses who visited them at the stables. In his letters, as Mr Puzey was to point out, he had not made any mention of his wife's consumption of the tobacco. Mr Puzey was to make something of Mr Wingrove's intention to use the tobacco as gifts for jockeys and owners, which he described as business use, a point to which I will return shortly. I merely remark at this point that while I can accept that Mr Wingrove might give some tobacco to jockeys, I find it somewhat implausible that he would consider it appropriate to give a packet of hand rolling tobacco to the owner of a racehorse as a token of hospitality.
9. In order to support his claim for restoration of the car, Mr Wingrove explained to the Commissioners that he needed a car because he lived in a very rural area and it was essential to transport his young children to school and for other domestic purposes. The Commissioners were able to ascertain, however, that no less than four other vehicles were registered to him and he accepted, when it was put to him by Mr Puzey, that he had used another of those vehicles to travel to France in March 2001. He said that the other four vehicles were not fit for use on the road — they were untaxed and were not in sufficiently good condition to pass an MOT test — and that he had disposed of the vehicle which he had used in March 2001. On this issue too I found Mr Wingrove's evidence unconvincing. At one point he said that his wife needed a car in order to transport the children while he was away at races; his later indication that he now travels to races with friends suggests that his wife still did have the use of one car. I am by no means persuaded that Mr Wingrove's being deprived of this car has put him in the degree of domestic difficulty which he claimed.
10. Mr Wingrove said during the course of his evidence that he had travelled to France four or five times during the last five or six years, meaning the six years preceding July 2002; he conceded in particular a trip in January 2002 and the trip in March 2001 which I have already mentioned. He accepted as he gave his evidence that he had brought in excise goods on those occasions, though he maintained he had brought only small quantities. At Dover, in July 2002, Mr Wingrove is recorded to have said that he had not imported tobacco from France before. He said in his evidence, however, that he had travelled to Belgium in January 2002 as he had in July; on the other occasions, he said, he had bought tobacco on the boat but not in France or Belgium. It seems to me that Mr Puzey is right in his suggestion that his statement that he had not previously imported tobacco from France, even if pedantically correct, lacks candour and was intended to mislead and, too, I have considerable doubts whether, if Mr Wingrove is right in saying that he and his wife are both smokers, and he was in the habit of giving away significant quantities of tobacco, he would have taken the trouble to travel to Belgium in January 2002, only to buy a modest quantity.
11. I found Mr Wingrove to be an unsatisfactory witness. First impressions were of an ingenuous countryman, but as time passed his emphatic claims to be telling the truth, accompanied by histrionic brandishing of the Bible used for taking the oath, left me with the clear impression that Mr Wingrove was not in fact telling me the truth and was concealing what he had intended to do with the tobacco. I found his initial very positive denial at Dover that any of the tobacco, beyond one box, was his — when asked if he had any more he replied "on my life no"- from which he recanted when told what Mr Kirby had said, particularly significant. I have already expressed doubts about some other details of Mr Wingrove's evidence; overall I find it impossible to place reliance on what he told me.
12. It emerged in the course of the hearing that Mr Wingrove's dissatisfaction is due in part to the Commissioners' having concluded (according to him wrongly) that he was attempting to bring in goods which were not truly for his own consumption and in part to his belief that if he is to be charged the duty on the goods they should be restored to him; his car, he considers, should be restored to him without charge (or, now, he should be paid its value).
13. It does not seem to me that it would be helpful to set out the relevant legislation, which is in any event recited at length in the Commissioners' letters setting out the reasons for the decisions reached on review and again in the statement of case. I should simply explain that if goods on which UK duty is payable are brought into the country and the person bringing them in does not pay that duty, the goods are liable to be seized by Customs and forfeit; and any vehicle used to transport the goods is also liable to be seized and forfeit. Duty is payable in this country on excise goods if they are brought in not for the traveller's own use, but for what are conveniently, if not entirely happily, referred to as commercial purposes. Mr Puzey's argument, which I mentioned briefly previously, was that Mr Wingrove's giving away packets of tobacco to jockeys and racehorse owners amounted to use in the course of his business, and was therefore a commercial purpose. As I have indicated, I am not satisfied about Mr Wingrove's evidence that he was intending to give any of the tobacco to racehorse owners. I am willing to accept that he might have given some to jockeys and that his doing so was in the context of his business venture, but I am not myself persuaded that this is to be as regarded as a true business purpose; rather, I think it is little more than a friendly gesture. I do not think there was any expectation by the jockeys that they might be rewarded in this way.
14. However, though it is necessary for the tribunal to find fact in cases such as this in order to compare them with the facts as they were perceived by Customs, I cannot simply replace Mrs Marshall's view with my own. I am able to allow Mr Wingrove's appeal only if I am satisfied that Mrs Marshall's decision is one at which she could not reasonably arrive; that is very clearly stated by section 16(4) of the Finance Act 1994.
15. Mrs Marshall reached her conclusion because, as her letter says, Mr Wingrove had changed his story about what he intended to do with the tobacco; the value of the amount he said he proposed to give away was considerable, when measured against his income; the assertion that the goods were to be given to jockeys and horse owners indicated a business purpose; and, specifically in relation to the car, Mr Wingrove's claim that his being deprived of it had occasioned him hardship had no substance.
16. Though I differ from Mrs Marshall in some of the details (I do not think much can be read into Mr Wingrove's financial resources, and I take a different view about the gifts to the jockeys), I find it impossible to say that her overall conclusion is unreasonable. She is quite right in stating that Mr Wingrove has given different explanations of what he intended to do with the tobacco when there is no evident reason why he could not have given a full and clear explanation at the outset. Although I do not accept his claim that he intended to give any of the tobacco to owners, it does not follow that in reality it was intended for his own use. If Mr Wingrove gives a less than frank account of his intentions and of his previous purchases, as I have found, he cannot complain if there remains a suspicion, to put it no higher, that he hoped to profit from his purchase. I consider that an entirely reasonable conclusion. I likewise share Mrs Marshall's scepticism about the supposed hardship occasioned to Mr Wingrove by the loss of his car. No doubt it is a considerable inconvenience but I am not persuaded that he has suffered any more.
17. The Commissioners' policy of offering the restoration of vehicles on the payment of a fee which is equivalent to the duty sought to be evaded — as a rough and ready measure of the gravity of the offence — is one which has been considered on many occasions and not disapproved by the courts and this tribunal. I can see no reason why a more generous approach should have been adopted in this case and it therefore follows that far from being persuaded that Mrs Marshall's conclusion was one at which she could not reasonably have arrived, I am satisfied that it was entirely reasonable.
18. The appeal is dismissed.
COLIN BISHOPP CHAIRMAN Release Date: 21 October 2004

MAN/04/8061