E00830
EXCISE DUTY — Appellant's goods seized comprised 630 litres of wine and 960 litres of beer — hired van being used seized and returned to hire company by Commissioners — regular traveller — alcohol claimed to be for personal use at Christmas, wedding and generally — appeal dismissed
MANCHESTER TRIBUNAL CENTRE
ANDREW SWIFT Appellant
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: Mrs E Gilliland (Chairman)
Miss C A Roberts (Member)
Sitting in public in Manchester on 30 September 2004
The Appellant in person
Miss M Mayoh of counsel instructed by Solicitors for HM Customs and Excise for the Respondents
© CROWN COPYRIGHT 2004
DECISION
- The appeal before the tribunal is that of Andrew Swift (the Appellant) challenging the decision of the Commissioners on review on 27 February 2004 not to restore excise goods (the goods) seized from him at Eastern Docks Dover on 28 November 2003. The goods comprised 630 litres of wine and 960 litres of beer. It is not in dispute that the Appellant when stopped was driving a hired van a Mercedes Sprinter registration number KY02 YKG. It had been hired for one day, was also seized and we understand was subsequently restored by the Commissioners to the hire company. The Appellant has presented his own case and given evidence on oath. He has called one witness his brother Nigel Swift. Miss Mayoh, Counsel for the Commissioners, has called one witness, the review officer, Raymond Brenton.
- The Appellant has acknowledged that the goods brought back from Calais on that occasion were in substantial quantities but that as he set out in his Notice of Appeal the seizure was illegal as the goods were for his own use and not for commercial use. The amounts much exceed the guidelines in the Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002 and the Channel Tunnel (Alcoholic Liquor and Tobacco Products (Amendment) Order 2002 (the Regulations) which list various factors the officers of the Commissioners should take into account when determining whether goods imported are for own use. The current amounts for wine are 90 litres whereas the Appellant had seven times that (about 960 bottles) and for beer 110 litres whereas the Appellant had brought back nearly nine times that (1689 pints). In his review letter of 27 February 2004 and in his evidence to us Mr Brenton has placed considerable emphasis on these quantities which he views as commercial in amount and on the fact which is not denied by the Appellant that he is a frequent traveller to France.
- In the bundle of documents produced by the Commissioners we have a copy of the manuscript record of the interview with a Customs officer when the Appellant was stopped on 28 November 2003. Some of the questions were put to the Appellant when he was still in his vehicle and the others at formal interview. After the first set there is the signature of the Appellant and subscribed underneath:" This is true I have read it. 0340. 28.11.03.and at the end:" I have read the above. I have answered all questions to the best of my knowledge. It has all been wrote down accurately. A. Swift. 04.35. 28.11.03."
- The record shows that the Appellant had first told the interviewing officer that he had gone to Calais to buy wine and had brought in 70 cases each of beer and wine. The drink was purchased at Calais for his wedding and cost about £1500 paid for by his partner and him with no contributions from anyone else though the drink would be consumed by anyone who wanted to. The joint monthly income of his partner and him was £1500 and they had about £12,000 in the Bank. The goods were first of all for Christmas but mainly for his wedding on 21 February 2004 with up to 350 guests at the Brooklands Hotel. What would be used at the wedding would be whatever would be left after Christmas and other uses. If necessary he would get more. Later he was asked why he had bought for February then and he said that he had bought "for now, Christmas and February". He said that if there had been no Christmas or wedding he would not have bought the goods. In any event he has told us today the goods had a sell-by date of eighteen months.
- The Appellant confirmed that he was a frequent traveller and that this was because of his job. He had told the interviewing officer that he was a coach driver for about three-quarters of the time and a motor trader for the rest. He worked for his partner Emily Hamilton and himself in their business at Barnsley. They specialised in taking people on short trips to France so that they could buy goods. This meant that up to four months before (that period being one he referred to on several occasions) he had gone once or twice a week as the driver though that had changed as his partner hired paid drivers and he now went only as required. It was Ms. Hamilton (now Mrs. Swift) who did the bookings and it appeared that the pattern was for his name to be used as the booking name. He has told us that this was because he was a voyager member with P&O Ferries and got money off. He said also that the driver for a trip was allocated later than the booking date. The Appellant said that he had been stopped "a lot" by Customs but had not had goods seized. He had seen Customs Notice 1 before and the guidelines he had thought were ten cases each of beer and wine; he had 70 of each as ten was not enough. He knew it was illegal to sell excise goods without paying duty.
- It is clear that the interviewing officer and the review officer have both considered that the Appellant was a knowledgeable traveller with the opportunity to bring in regularly excise goods and that the goods which he had brought in from France were so excessive in quantity that they had to have been acquired for commercial use. Counsel for the Commissioners and Mr Brenton have drawn our attention to paperwork provided by the ferry operators and have sought to establish inconsistencies in the evidence of the Appellant as set against these. What the Appellant has told us is that four trips made by a Mr Swift during the month of November 2003 were not made by him and that he had not travelled for four months. We have had before us the Tourist lists supplied by P&O Stena Line for a series of dates in May to November 2003 mostly for vehicle registration P86O DVN and most showing a "passenger name" of "Swift". For 27/11/2003 the lists show the Mercedes Sprinter KYO2YKG with passenger name Swift at check in 21.29 one travelling and a towed trailer MB L789LRB also with passenger name Swift at 21.30 with nine passengers. This latter vehicle we are told was one of the firm's vehicles and was driven by the Appellant's father Harry Swift. We have had to hand some Port Systems check-in lists and passenger registration lists for several dates in November 2003 and these show the lead name as Mr A Swift. The Appellant has strongly challenged in his evidence to us the suggestion that he was the traveller Swift on these occasions. He has produced copies of letters he obtained from various drivers setting out dates in July, August, September, October, and November 2003 when they were driving and the Appellant was not there. These were typed out by the Appellant, as he has confirmed, and would seem to us to have been drafted by him. They are not witness statements and the copies we have are unsigned, although the Appellant has told us that the originals were signed. The Appellant's brother also a part- time driver for the firm gave evidence that the Appellant was not present on a crossing (10 - 11 November 2003) when the passenger list appeared to show that he had been and indeed he confirmed that he (Nigel Swift) had been the driver and, contrary to what was indicated, had returned with the vehicle. The Appellant claimed also that on 20 - 21 November 2003 he had been incorrectly listed as both lead name and passenger when he was not in the vehicle at all. The Appellant had referred in the interview he gave to there being other A Swifts and in his evidence today to there being many inaccuracies in the ferry company's record taking. We have to observe however that to accept this evidence at face value we would have to accept that passenger lists were consistently incorrectly completed and that passengers' names were at check in examined with little concern for accuracy. The interviewing officer observed also that for the travel dates of 27/28 November 2003 varying the usual position there was no Mr A Swift on the list for the firm's vehicle though it did travel that night and so did the Appellant in the hired van. The Appellant had told the interviewing officer first that he had last travelled four months before but had not bought excise goods and indeed had last done so about three years ago. The record shows that he added then that he had bought three or four cases of beer and wine when he had travelled four months before. When later asked again he said he guessed at five cases of wine or beer and maybe twenty pouches of tobacco. Having considered the evidence we are satisfied that the Appellant did travel regularly during those four months.
- As we have indicated the Appellant acknowledged that he had brought in large quantities of wine and beer and his explanation was that he had bought this as Christmas was coming up, as was his wedding in February. He said that he had known to take some proof of the wedding and accordingly had produced correspondence relating to the arrangements namely a register office receipt and a hotel booking form. We have also in the papers before us copy letters and bookings and we are quite satisfied that wedding plans were in hand in November 2003. Mr Brenton in his evidence has confirmed however that he checked up the position with the hotel and was informed that the hotel would be providing the alcohol for the wedding. The Appellant has not contradicted this and his evidence on the point has been that he had never said that the wine and beer were for the wedding reception that they were for entertaining at the time of the wedding and at the hearing he has said that there was also to be a marquee for entertaining afterwards which Counsel for the Commissioners has observed had never been mentioned before. We do not find that the Appellant has established that the quantities brought in were ear-marked for specific occasions.
- In her submissions Counsel for the Commissioners has referred the tribunal to the judgment of the Court of Appeal in Gascoyne (Barry Gascoyne –v- HM Customs and Excise [2004] EWCA Civ 1162} as clarifying the role of the tribunal in cases of this nature. She has submitted that it would not be appropriate for the tribunal to look at the circumstances before seizure and forfeiture as that had been resolved by condemnation proceedings or where as in the instant case there had been none the goods were deemed to have been forfeited by passage of time. Accordingly for the tribunal to make findings as to personal use or commercial use would be outside its jurisdiction. We do not accept that submission. Gascoyne is not in our view authority for such a wide proposition. There is a clear distinction in our view between the situation where there have been condemnation proceedings and the goods have been found to be forfeit and the situation where the goods are deemed to have been forfeited because no application has been made to challenge the seizure under paragraph 3 of Schedule 3 to the Customs and Excise Management Act 1979 (CEMA). The deemed condemnation does in our view engage Article 1 of the First Protocol to the European Convention on Human Rights. This appears from Paragraph 49 of the judgment of Buxton LJ in Gascoyne where he said:
"I turn to the Convention. The forfeiture process interferes with Mr Gascoyne's rights to his property that are potentially protected by Article 1 of the First Protocol to the Convention".
- At Paragraph 55 of his judgment Buxton LJ said:
"In my view therefore in a case where the deeming provisions under paragraph 5 are applied, the tribunal can re-open these 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 in fact be ventilated before it".
In our judgment it is clear from this passage that the tribunal in a proper case may inquire into the question whether the goods were in fact imported for personal use or for commercial use.
- The power of the tribunal with respect to decisions of the Commissioners on excise duties is
"…confined to a power, where the tribunal are satisfied that [the Commissioners] or other person making that decision could not reasonably have arrived at it, to do one or more of the following…"
and there are set out three directions which may be made by the tribunal (Finance Act 1994 s 16(4)). Accordingly we are to be satisfied that the review officer has acted reasonably and to do so he must have taken into account all relevant considerations and left out all irrelevant ones. We refer also to the judgment of Buxton LJ in Gascoyne where he stated in connection with condemnation proceedings
"…in the tribunal you assume the correctness of the findings that the Magistrates' Court did make or is deemed to have made. That does not exclude the exercise of the discretionary powers of the Commissioners, and after that the tribunal, albeit that those powers have to be exercised on the assumptions as to lawfulness of importation that the Magistrates' Court make."
The tribunal is entitled in testing the reasonableness of the officer's decision to look at the relevant facts he took into account. Mr Brenton in his review letter referred to the Commissioners' policy on the restoration of excise goods
"…seized goods should not normally be restored. However, each case is examined on its merits to determine whether or not restoration may exceptionally be offered."
It is clear to us that the review officer looked at the matter afresh; he was aware of his power under s 152 (b) of CEMA to uphold vary or withdraw the contested decision; and he looked at all the material including correspondence available prior to the hearing. He has confirmed also that nothing said or produced at the hearing would cause him to alter his decision.
- The Appellant's case is that he was making the trip to France on his own account and not for his usual business reasons. It was not normally possible for him to bring back goods for himself even though the vehicle he used towed a trailer as the passengers went for goods and he had to ensure that the weight limit was not infringed. He had accordingly hired a van of a type he had not driven before for use on his own trip. The reason for making the trip was to bring back enough wine and beer for Christmas and generally but principally for his wedding planned for February. His working pattern had recently changed and so he had not been driving to France in the previous four months. He had brought back large quantities as he was allowed to do for personal use but he would not have done so but for those events. Whilst this might be said to be the Appellant's submissions in outline there are a number of areas of conflict and inconsistency in the evidence he has put to the tribunal in support of the same. We have set these out in detail above. The review officer found that the Appellant had given evasive answers in an attempt to obscure a commercial intent. We are satisfied that the officer was not acting unreasonably in coming to that conclusion having examined the material to hand and indeed having pursued a specific enquiry of his own of the wedding hotel. There was fresh evidence at the hearing in the papers brought by the Appellant to show that there was a legitimate business in operation. None of this material made reference to him and the operators licences and accounts were in the names of his partner and his sister. None of it had any relevance to the trip on 27/28 November 2003, which has never been said to be part of any business operation, and was not in a firm's vehicle. The copy letters were in evidential terms inconclusive. They went no way to identifying how the Appellant's initial and surname were consistently on the ferry records during a period when he said that he was not a regular traveller. We note also that there was no letter from another Mr A. Swift whether Anthony or Andrew Dale as mentioned in the interview record which might have helped to lift the confusion. The review officer saw nothing to point to exceptional circumstances which might lead to a different application of the Commissioners' policy and in the circumstances nor do we.
- The appeal is dismissed.
- The Commissioners have not sought costs and we make no direction as to costs.
E GILLILAND
CHAIRMAN
Release Date: 23 November 2004
MAN/2004/8055
