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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 >> Evans v Revenue & Customs [2005] UKVAT(Excise) E00905 (2 September 2005) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2005/E00905.html Cite as: [2005] UKVAT(Excise) E905, [2005] UKVAT(Excise) E00905

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EO00905

Excise duty tobacco – seizure of tobacco goods from foot passenger –whether reasons for seizure reasonable – no - new review directed.

LONDON TRIBUNAL CENTRE

LAYTON EVANS Appellant

- and -

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Dr David Williams (Chairman)

Angela West FCA

Sitting in public in Cardiff on 19 April 2005

The Appellant represented himself

Ms Helen Darroch, counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2005


 


DECISION

1. The Appellant, Layton Evans, was stopped by an officer of the Respondents ("Customs") at about 4 pm on 4 April 2004 in Dover Eastern Docks walkers hall. As a result of what followed, the officer decided some 40 minutes later to seize some of the tobacco goods being carried by the Appellant. Mr Evans did not challenge the condemnation proceedings in the East Kent Magistrates Court that followed, but did challenge the review decision taken by Officer Rayden on 11 June 2004 confirming the decision not to restore the seized goods.
2. Mr Evans conducted his own appeal. He gave evidence before the tribunal on oath. Lee Daniels, who was travelling with him, and was stopped by officers at the same time as the Appellant, also gave evidence. Mr Evans also offered the evidence of a good friend of his as a character witness but at the suggestion of the tribunal did not call that witness. Evidence was given for the Respondents in the form of unchallenged statements by Officers Fry and Seaward and with the statement of and oral evidence from Officer Rayden, the Review Officer. Customs also provided the tribunal with full supporting documentation.
3. At the hearing, the Respondents sought to rely on inconsistencies in the Appellant's evidence, and between his evidence and that of Mr Daniels, to support their decision. However, the tribunal records that the inconsistencies were to be found in the evidence of both parties. For example the Respondents record of the tobacco goods being carried by the Appellant was not a complete list, although the Appellant consistently stated what goods he had with him and there is no evidence that he hid any. The "missing" items, noted in the notebook copy from Officer Fry but not in the typed copy of that notebook or the later decisions, were 50 Old Windmill cigars and a packet of Gauloise cigarettes. The omission of the Gauloise cigarettes is important because in that same notebook the officer records that the Appellant had "no smoking material" with him, while the tribunal accepts that he did have smoking material with him and that is precisely why (as the receipt he produced to the officer – not produced by the Respondents but evidenced by the same notebook – substantiates) the Appellant purchased one packet only of those cigarettes at the same time as the tobacco. As the Appellant himself pointed out, the Respondents' officers also appeared to take inconsistent views about the length of time that tobacco could be kept usable after purchase and about the speed at which the tobacco in question would be smoked, muddled up the evidence given by the Appellant with that given by Mr Daniels, and initially sent the review letter to Mr Evans at the wrong address.
4. Against that background the tribunal records that it accepts that the evidence given by the Appellant was somewhat vague and patchy but nonetheless was generally credible. The evidence given by Mr Daniels before the tribunal was largely credible but of itself brought the earlier statements by him into question, as the witness himself admitted. The evidence of Officer Rayden was accepted within the limits of his task of reviewing the evidence recorded by others at that time. The Appellant accepted, with one or two reservations (the most important of which is noted above), the evidence of Officer Fry in the interview with him, and the tribunal relies also on that evidence subject to those points. The evidence of Officer Seaward, in interviewing Mr Daniels, was not something on which the Appellant could comment, and therefore not evidence that he could either confirm or challenge. The tribunal takes no view about that untested evidence.

The events leading to the seizure

5. The tribunal accepts, from the evidence outlined above, the following account of events. Mr Evans was and is a moderately heavy smoker. He travelled to Belgium from time to time to buy tobacco. He was aware of the guidance limits applying to the purchase of tobacco products and normally did not exceed them. He decided to go on a coach trip organised by a local firm for a weekend in Belgium on the weekend of 3 and 4 April 2004. Mr Evans suggested to his friend Mr Daniels (a near neighbour and someone who also drinks in the same pub with him) that they go on the trip together, and Mr Daniels agreed. They also agreed to share a room in the hotel booked by the coach company for them, and they travelled together both to and from Belgium.
6. A major reason why Mr Evans decided to go on the trip was to stock up on tobacco, as he knew that Belgium sold the cheapest tobacco readily available and he needed to stock up. At that time Mr Evans lived with his mother. She has since died. He was then not working because of health problems and was receiving a benefit he termed income support (though as he was born in June 1942, he was at the time over 60 and therefore above the age at which claimants normally receive income support but instead have other more generous entitlements). He was also given sums of money by his elderly mother from time to time, but with no consistency in amounts or regularity of payment. His mother also paid much of his living costs, in exchange for the help he gave her. As a result, he was able to save up some of these receipts and kept the money in cash. He used that money to pay for the trip and for the purchases he made during the trip.
7. The Appellant and Mr Daniels enjoyed the night in Belgium drinking, and had more to drink on the way home. While in Belgium the Appellant purchased 150 pouches of Golden Virginia, 20 packets of Hamlet cigars, 50 Old Windmill cigars, and a packet of Gauloise cigarettes. He did not buy any other cigarettes or other dutiable products. He bought those products for his own use. He had on previous trips bought rather less tobacco at any one time, and he knew from those shopping trips that tobacco, which he kept in a cool place at home, would keep for his purposes for six to eight months and possibly longer. But on this occasion he said that he had bought more than usual. This, he said, was because his daughter had moved to France and he had decided that if he was going to go abroad in future it would be to France not to Belgium. But he was also aware that tobacco was cheaper in Belgium than in France.
8. Mr Daniels also bought tobacco. Both the Appellant and Mr Daniels told the tribunal that they had not made any agreement, or even compared notes, about their shopping. The Appellant and Mr Daniels did some shopping at the same time, and Mr Daniels did further shopping on his own later. They told the tribunal that each paid for the goods he bought from his own resources, and that neither knew precisely what the other had purchased.
9. When stopped by the officers at Dover, both the Appellant and Mr Daniels had been drinking. Indeed, one officer recorded that Mr Daniels stated that he was inebriated in interview.
10. Officer Seaward recorded that he first stopped Mr Daniels. No reason was given for that, and as Mr Daniels' case was not before the tribunal that issue was not explored by the tribunal. While the officer was speaking to Mr Daniels, the Appellant came to stand behind them. Much of the interview that followed was between the officer and Mr Daniels, and the Appellant is recorded as saying very little. But he did declare the tobacco goods he had, and he said that he had never been stopped by Customs before. There is no evidence that that is not so. Officer Seaward then apparently interviewed Mr Daniels, but it is not clear from the officers' statements what happened until Officer Fry was asked to interview the appellant some 20 minutes after the interview with Mr Daniels started.
11. The Appellant told the officer that he had bought the tobacco for himself and the cigars as a present. When asked how much he had spent he said he did not remember but he also produced and handed over a receipt as part of his answer to that question. That receipt included almost all the goods he had with him when goods were seized from his luggage. The interview that followed was straightforward. The Appellant was asked nothing about Mr Daniels. Nor was he asked about the detail of his smoking habits beyond whether he smoked, how long a pouch of tobacco would last him, how long the tobacco he bought would last him, and whether he had an open pouch of tobacco. In particular the Appellant was not asked if he smoked cigars or cigarettes, whether he was at the time smoking anything other than pouch tobacco or why he had purchased a single packet of Gauloise cigarettes – but no more - at the same time as the tobacco, although the officer would have seen that on the receipt produced. He was also asked about how he funded the purchases, and he stated that it was from his income support and money his mother had given him.

The reasons for seizure

12. Officer Fry recorded at the time that at 5.02 pm the tobacco, but not the other tobacco products, was seized for the following reasons:

"1. claimed goods will last one year – if smokes three a week will last approx seven months.

2. No smoking material

3. Not reasonable to save income support allowance when savings in bank

4. didn't know how much he spent

5. in excess of revised guidelines.

13. A short while before that seizure, Officer Seaward recorded the following reasons for seizing goods from Mr Daniels:

"1. Received money for 2 kg tobacco.

2. Stated goods would last about 6-8 months but at his consumption rate

should last 110 weeks over 2 years.

3. Shelf life of tobacco only about 6 months.

4. Admitted commerciality as goods brought for friend at cost (money

received in advance).

5. Stated only had 30pouches when originally asked."

14. In considering the review, Officer Rayden set out both sets of reasons and then drew on both of them in deciding the review of seizure from the Appellant. He stated in the review letter:

"You were unemployed and receiving only £102.50 a week in benefits and I doubt that you would spend more than 2 weeks' income on tobacco for your own consumption, or save up £418 from your benefits as you claimed. I believe that the most likely explanation is that you were engaged in a joint enterprise with Mr Daniels to sell tobacco at a profit in the UK and that Mr Daniels was indeed referring to a total of 300 pouches of tobacco between you."

That reference is to a statement made by Mr Daniels to Officer Seaward.

The tribunal's views

15. The tribunal notes that neither Officer Fry nor Officer Seaward sought to rely on any "joint enterprise" between the Appellant and Mr Daniels. Not only that, but also the considerations taken into account by the two officers conflicted with each other. While Officer Fry justified the seizure from the Appellant because the Appellant expressed the hope that his goods would last for 12 months while his rate of consumption suggested that they would only last seven, Office Seaward used a set of reasons that were the direct reverse of, and a direct contradiction to, those reasons when seizing goods from Mr Daniels. Neither officer suggested any form of collusion between the Appellant and Mr Daniels. Further, the contradictory approaches taken by the two officers suggested to the tribunal that the officers had not compared notes about their views when conducting the separate seizures. If they did compare notes, they made no contemporary record of such comparison, nor did either of them indicate this as a reason for seizure. The tribunal would also have expected any comparing of notes to have identified the contradictory views they were taking in their stated grounds for seizure.
16. In that context, the tribunal considered whether it was reasonable for Officer Raydon to conclude that the "most likely explanation" for – the tribunal assumes – the Appellant's ability to fund his purchases was a joint venture. It frankly does not understand the third of the five reasons stated by Officer Fry, that "not reasonable to save income support allowance when savings in bank." There is no evidence whatsoever in the papers (either recorded from the Appellant or otherwise) that the Appellant had any savings in a bank. There was evidence, on which Officer Fry did not comment and which Officer Rayden appears to have failed to take into account, that the Appellant was given money by his mother and also had at least some of his living expenses funded by his mother, so providing him with a source of cash savings. There is evidence that Mr Daniels admitted that he had received funds from others, but no evidence that anyone suggested prior to Mr Rayden's review that the Appellant had received funds from others. Both the Appellant's evidence to that effect, and also Mr Daniels', were confirmed in oral evidence before the tribunal. And there was no oral evidence to the opposite effect from anyone, although Mr Rayden ventured opinions based on what he had heard at the tribunal hearing.
17. The tribunal does not therefore see any factual basis for Mr Rayden's view that a joint venture was the "most likely explanation" for the Appellant affording his purchases. Indeed, it has not seen any evidence of any form of "joint venture".
18. If that is so, then the tribunal does not consider it is reasonable to take the reasons given for seizing Mr Daniels' goods into account in seeking to uphold the seizure of the Appellant's goods. Mr Daniels has not disputed the seizure of the goods from him. But if, as the tribunal concludes on the balance of probability, there was no common cause with the Appellant, then this strengthens rather than weakens the Appellant's case.
19. Turning back to the reasons for seizing the Appellant's goods, the tribunal therefore concludes as follows. With regard to the reasons given by Officer Fry:

1 This reason is directly contradictory to the reason given by Officer Seaward. If Officer Seaward's assumption about tobacco life is reasonable then this reason would appear to assist the Appellant rather than justify seizure.

2. That is contradicted by the officer's own evidence.

3. The tribunal does not see any evidential basis for this statement.

4 This ignores the fact that the Appellant promptly and without further request produced a receipt for the goods, declared voluntarily in full, at the same time as making this comment. The tribunal considers that taking the remark alone is to take it out of context.

5. Agreed.

In other words, the only soundly based reason given at the time is that the guideline for hand rolling tobacco was exceeded. Not only that, but some of the conclusions were in the technical sense perverse in that they were not apparently based on any evidence at all while others ignored the available evidence. And where was the evidence of commerciality?

In reviewing the decision, Officer Rayden did not deal with any of the inconsistencies noted above. Nor was he able to unscramble the point about the expected life of the tobacco in oral evidence when the Appellant put it to him. Instead, he sought to rely on the evidence of Mr Daniels to conflate the evidence of the Appellant with that of Mr Daniels. That is circular reasoning unless there is a reasonable basis in the evidence. The officer did not produce such evidence and the tribunal has seen none.

In the tribunal's view the matter should therefore go back to another review, that review to take into account the observations of the tribunal about the reasons given for seizing the Appellant's goods.

DR D WILLIAMS

CHAIRMAN

RELEASED: 2 September 2005

LON/2004/8054