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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 >> Dean v Revenue & Customs [2005] UKVAT(Excise) E00912 (12 September 2005) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2005/E00912.html Cite as: [2005] UKVAT(Excise) E912, [2005] UKVAT(Excise) E00912

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EO00912

EXCISE DUTY RESTORATION OF GOODS — new review on facts — mistake by Customs at the port as to identity of traveller — traveller not questioned after mistake discovered — full explanation not given as to reasons for importation of beer and tobacco — Customs not in possession of full facts — account not taken of all matters specified in Excise Directive — appeal allowed and further review required

MANCHESTER TRIBUNAL CENTRE

MUSHARAF AHMED DEAN Appellant

- and -

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Michael Johnson (Chairman)

Peter Whitehead

Sitting in public in Manchester on 10 June 2005 and 19 August 2005

Raquel Simpson, counsel, instructed by JGT Solicitors, for the Appellant

Joshua Shields, counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2005


 


DECISION
1. The Appellant Mr Dean is appealing against a decision by a reviewing officer of H M Customs and Excise ("Customs"), Mr Graham Crouch, not to restore excise goods consisting of 50 Kg of hand-rolling tobacco and 4,800 l of Stella Artois beer ("the goods").
2. The goods were seized from Mr Dean at Dover Eastern Docks on 15 March 2003. At the time, Mr Dean was returning to the UK from the continent in the company of his brother, Mr Farooq Ahmed Dean, and a friend, Mr Ian Martin Crawford. They were all travelling in a hired 3½-ton truck.
3. The Appellant gave oral evidence to the tribunal and was cross-examined. He told the tribunal that the purpose of importing the goods was that they were to be used at the wedding celebrations of his sister, Miss Tahmeena Taj Dean. We find that this was mentioned to Customs when the travellers were stopped, but not in any detail. As to the wedding, we make the findings of fact mentioned in paragraphs 49 to 53 below from the evidence of the Appellant.
4. On arrival at the Customs point, the three travellers were questioned by Officer Julie Elizabeth McNeill of Customs. She gave evidence to the tribunal and was cross-examined. Mrs McNeill's Witness Statement dated 5 November 2003, admitted in tribunal as her evidence-in-chief, is based largely on her notebook entries as to the conversation that she had with the travellers.
5. It is common ground that the Appellant handed to Mrs McNeill certain pieces of paper designed to evidence the impending wedding. These documents were as follows –

a) A printed invitation showing that Miss Dean would be marrying Mr Nafees Zakir on 20 April 2003 at the Ramada Jarvis Hotel, Bolton;

b) A printed invitation showing that Miss Dean's Rasm-e-Hina would take place on 18 April 2003;

c) General documentation from the hotel concerning the solemnization of marriages at that venue;

d) Copies of 2 letters from the hotel, dated 23 October and 12 November 2002, confirming that the wedding was provisionally booked for 9 March 2003 for a maximum of 500 guests and confirming receipt of a deposit of £500;

e) A separate receipt from the hotel for £500; and

f) A copy of a Booking Form showing that the date of the marriage had been altered from 9 March 2003 to 20 April 2003.

6. In our view the above documentation evidences that Miss Dean's wedding was due to take place on 20 April 2003, having been rescheduled from its provisional date of 9 March 2003. We do not accept that there is anything suspicious about the change in the date for the wedding, which, after all, the Appellant freely disclosed. The evidence put forward by Customs in this appeal does not indicate that the travellers were questioned on the basis that suspicion was or might be entertained by Customs as to the fact of the wedding or its intended date.
7. Mrs McNeill's recollection of the questions she asked the three travellers and the answers given by them differed from the evidence of the Appellant.
8. The Appellant told the tribunal that he told Mrs McNeill that the three travellers had been to Belgium and not just to France, as Mrs McNeill alleges; that he told Mrs McNeill almost at the outset, and not just later on, that they had brought back tobacco as well as drink for Miss Dean's wedding; and he said that he produced to Mrs McNeill his receipts for the tobacco, bought in Adinkerke, at one and the same time as he produced the receipt for the drink, bought in Calais.
9. Mrs McNeill disagreed with the Appellant's evidence, and relied upon the contents of her notebook. Her case was that Belgium was never mentioned, and that the tobacco was only mentioned when she asked, later on in the conversation, whether tobacco as well as drink was being transported.
10. However we find that, in compiling the notebook, Mrs McNeill was depending upon her memory of the conversation, in that the notebook entries were not made contemporaneously with the questions and answers to which they relate. We find that Mrs McNeill did not finish writing up the entries until 35 minutes past midnight, some 4½ hours afterwards. There was thus some scope for the notebook entries to be inaccurate.
11. Further we observe that Mrs McNeill's notebook indicates that only one lot of receipts for the goods were handed over, and that the notebook entries indicate that the handing over occurred at an early stage in the conversation, when the Appellant says that he had informed Mrs McNeill that he was transporting tobacco as well as drink, and had been to Belgium as well as France.
12. We have seen copies of each of the receipts, included in the bundle of documents for the use of the tribunal handed in to us by Mr Shields, who represented Customs at the hearing. The copy receipts for the tobacco clearly indicate Belgian origin, just as the drink is shown to have been bought in France. Yet Mrs McNeill's notebook entries say nothing about the travellers having been questioned about the tobacco immediately after the handing over of the receipts, and nothing at all is recorded about Belgium. One would however have expected a reference in the notes to travel to Belgium, and to the tobacco, at that point in the conversation, assuming that the tobacco and drink receipts were handed over together.
13. We are accordingly sceptical as to the accuracy of Mrs McNeill's evidence, and we prefer the Appellant's account of the conversation to hers. Mrs McNeill's evidence, based upon the notebook entries, conveys the impression that it was only later in the conversation that the Appellant disclosed the existence of the tobacco. We find that this is misleading. We find that, on the balance of probabilities, it was earlier in the conversation, when he mentioned the drink, and handed over the receipts, that the Appellant also mentioned the tobacco. We think that it is unfortunate that the notebook entries make it appear that the Appellant refrained from mentioning the tobacco at the start of the conversation.
14. We might add that we are surprised that the notebook entries were made up so tardily, thereby contributing to their apparent inaccuracy. The entries were apparently not offered to any of the travellers for signature and acceptance as they were not written up at the time of the conversation.
15. When they were stopped, the three travellers handed over their passports in one go. It appears that Customs made what we are satisfied was an honest mistake as to the identity of the Appellant.
16. Mrs McNeill, and her colleague Officer Gary John Cochran of Customs, who was teamed with her that evening, looked at the photographs in the passports and seem to have assumed that the Appellant was his brother Farooq, and vice-versa. Customs had a record that the Appellant's brother had been stopped by them on a previous occasion when he was importing excise goods and had goods seized. However it is common ground that the Appellant had never been stopped by Customs before.
17. We find that Officers McNeill and Cochran assumed that the previous stop related to the Appellant, which was wrong. We find that this assumption had an impact which resulted in an error in the way in which the Appellant was treated on the occasion with which we are concerned.
18. The Appellant was singled out for separate interview, as the traveller who had stated, correctly, that the goods were his. Mr Cochran conducted the interview, in the presence of Mrs McNeill. Mr Cochran gave evidence to the tribunal and was cross-examined. Mr Cochran's evidence-in-chief was principally contained in his Witness Statement dated 3 November 2003, although he was asked a small number of supplementary questions in chief by Mr Shields.
19. Mr Cochran confirmed to the tribunal at the outset of his evidence that his Witness Statement was entirely correct.
20. Mr Cochran's Witness Statement shows that a so-called "commerciality statement" was read to the Appellant and that, after the Appellant had been told that he was free to go if he wished, the Appellant was asked if he wanted to stay and answer questions, and that he replied simply "No".
21. However the Appellant told us that he did not refuse to answer questions. He said that he was upset about having been mistakenly identified as his brother, and that he was never given a chance to put forward his version of events before the seizure of the goods was confirmed.
22. We find that Mr Cochran's Witness Statement does not accurately reflect the notebook entries made by this officer. Copies of the notebook entries are in the tribunal bundle.
23. The notebook entries indicate the following sequence of events –

1) The "commerciality statement" was read to the Appellant, described as Mr Farooq Ahmed Dean (as Mr Cochran and Mrs McNeill then thought he was);

2) The Appellant was asked whether he understood the "commerciality statement" and he replied that he did;

3) The Appellant was asked whether he wished to stay and answer questions and he replied that he did not;

4) The officers seized the goods;

5) The seizure papers, showing the traveller from whom the goods had been seized as Mr Farooq Ahmed Dean, were presented to the Appellant for signature;

6) The Appellant pointed out the mistake of identity;

7) According to the notebook entries (and we quote), "Musharaf expressed concern that [the] decision to seize had been partly based on this [error]. Initial checks had shown that Farooq was known to the department for previous seizures. Mistake admitted to Masharaf but satisfied ^[1] that we still have reasons for seizure these being (1) beer in excess of guideline levels; (2) tobacco in excess of guidance levels; (3) paperwork presented had been amended";

8) Mr Cochran's notebook was then presented to the Appellant but he refused to sign it;

9) The amended seizure papers were then issued without further ado;

10) The Appellant was escorted to the hired truck ^[2] and thence to the departure lounge.

24. In the light of Mr Cochran's notebook entries, we think that his Witness Statement, and hence his evidence to the tribunal, is misleading by reason of what it omits to mention. Specifically, it makes no mention of the Appellant's recorded concern about the seizure.
25. It does not appear to us that the Appellant was given a reasonable chance to answer questions about the seizure after his mistaken identity had become apparent to Customs. True, he had indicated that he did not wish to answer questions before the seizure, but that was at a time when, as shortly became apparent, the parties were at cross-purposes as to his identity.
26. The impression conveyed by Mr Cochran's notes is a surprising one. It looks very much as though the Appellant's case was pre-judged without the full circumstances having been elicited by Customs. No further questioning took place once the fact of the mistaken identity had been appreciated.
27. At the very least, so it seems to us, the Appellant should have been afforded a further opportunity to explain himself once he had dispelled the incorrect supposition on the part of Customs that he was a man with a "track record" who had previously had goods seized from him by Customs. We find that the Appellant was not given that opportunity.
28. Accordingly, although the Appellant was a man of good character, the seizure of the goods from him was confirmed by Customs without apparently taking that fact into account.
29. We are troubled by the omission from Mr Cochran's Witness Statement of a complete record of what happened according to his own notebook entries. When the Chairman asked him for an explanation of the omission, Mr Cochran was unable to give one. Indeed, Mr Cochran admitted that the notebook itself was not complete, in that the Appellant later returned from Dover Bus Station – to which he had been accompanied following the seizure of the goods and the hired vehicle – and requested the return of his receipts. Mr Cochran mentions this in his Witness Statement but not in his notebook. Mr Cochran accepted in oral evidence that the notebook should have mentioned this, but it does not.
30. We find that the Appellant was not given the receipts, seeing that Customs appear to have retained and photocopied them for the purposes of the tribunal bundle. Nobody was able to tell us where the original receipts were at the date of the tribunal hearing.
31. We find that Mr Cochran's evidence to the tribunal is unsatisfactory. When he and Mrs McNeill were confronted by the discovery of the mistaken identity – a belated discovery, in that the goods had by then been seized – they did not "set the clock back" and recommence the process of enquiry as in our view the Appellant was reasonably entitled to expect.
32. In these circumstances we accept the evidence of the Appellant that he received short shrift. We hold that it could not properly be assumed that he was not prepared to answer further questions.
33. The third witness for Customs was the reviewing officer Mr Graham Crouch, who also gave oral evidence and was cross-examined. His decision, dated 31 July 2003, is the one under appeal. It was preceded by a decision contained in a letter from Customs dated 27 May 2003, refusing restoration of the goods. The Appellant required that decision to be reviewed. That prior decision is not the one that we are considering, but we do note that the refusal it contains is based inter alia on Mrs McNeill's evidence, which we have rejected as flawed, and in further part on evidence, directly or indirectly derived from the Ramada Jarvis Hotel, which does not, as we find, provide the full picture with regard to the wedding.
34. In his review letter, under the heading "Consideration", Mr Crouch states –

"Whilst the evidence confirms that a wedding was to take place, I am of the opinion that the excise goods imported were not for that wedding but for commercial disposal. I believe that the wedding was used as a cover in an attempt to distract the Officer's attention away from the commercial nature of this importation."

35. Mr Crouch then states his grounds for his opinion, which are based on what he perceives to be the unlikelihood that the maximum of 500 guests that he understood to be expected at the wedding would consume the 50 Kg of tobacco and 4,800 l of beer being imported.
36. Mr Crouch is, of course, correct that the quantities imported are suspiciously large ones for a personal importation. They certainly called for an explanation, fuller than that obtained from the travellers at the time of importation.
37. Mr Crouch went on to state in his review –

"I can only conclude that given the quantities imported this was a commercial venture and the goods were to [be] disposed of for a profit.

"It remains for me to address the issue of restoration of the excise goods. From the points that I have set out above in considering your request to review the disputed decision I am of the view that your client ^[3] clearly knew that what he was doing was wrong. I state this because he declined to remain and answer further questions and I can only conclude from his actions that he realised that he had been stopped by Customs in the act of improperly importing excise goods and Customs did not accept the cover story of his sister's wedding to justify the very substantial purchase of excise goods."

38. In his Witness Statement dated 29 October 2003, Mr Crouch states that included amongst the documents that he considered were " … the Officer's record of the seizure of the goods along with a qualifying statement as to the mix-up over the identity of the Appellant and one of the fellow travellers (Exhibit 1) … ."
39. "Exhibit 1" is the notebook entries of Mr Cochran that we refer to in paragraph 23 above. Mr Crouch quoted the entries we refer to in paragraph 23(7) above at the foot of the second page of his review decision. Mr Crouch was therefore aware of the matter of mistaken identity.
40. Unfortunately, Mr Crouch does not go on to analyze the effect of the mistaken identity. What he states is this –

"Unless there has been a successful appeal to a Magistrates Court contesting the legality of the seizure, and I am not aware that there has been, the excise goods and vehicle are condemned as forfeit to the Crown by the passage of time."

41. The implication appears to be that the matter of mistaken identity is irrelevant to the matter of restoration of the goods unless the seizure has been appealed to the Magistrates Court. As Mr Crouch rightly says, there has been no such appeal in this case, so that the goods are indeed deemed to be forfeit. However, in our view, it would not be right to say that the deemed forfeiture prevents this tribunal from considering the Appellant's case on mistaken identity and ruling upon whether the review decision was reasonable in consequence.
42. Appearing for Customs, Mr Shields submitted that the tribunal lacked jurisdiction. He referred us to the decision of the Court of Appeal in Gascoyne v Customs and Excise Commissioners [2005] 2 WLR 222. Mr Shields submitted that the opportunity to request the issue of condemnation proceedings had existed, but had deliberately not been taken. The goods were accordingly deemed forfeit to the Crown under Schedule 3 of the Customs and Excise Management Act 1979. Therefore the tribunal could not look into the legality of the seizure.
43. Mr Shields submitted that, in exceptional circumstances, restoration of excise goods might be appropriate. However, he said, there were no such circumstances here. The Appellant knew what he was doing in making the importation, and that the importation was unlawful. It was implausible that such a large quantity of tobacco might have been smoked at the wedding, as alleged, whether by hookahs or otherwise. Neither would so much beer have been drunk. There were good policy reasons for Customs not to restore in a case like this, Mr Shields said. He invited us to dismiss the appeal.
44. Ms Simpson of counsel appeared for the Appellant. On his behalf, she submitted that the matter of mistaken identity was crucial in this case. When they appreciated that the Appellant was not his brother Farooq, Ms Simpson said, the Customs officers did not reapply their minds. They simply adopted their original decision to seize the goods, reached at a time when they thought that the Appellant was Farooq.
45. Ms Simpson said that a previous tribunal had directed a further review in a not dissimilar situation. She referred us to the case of Michael Spencer v Commissioners of Customs and Excise (2003) Excise Decision No 777. In that case, there was a large importation of tobacco, cigarettes, beer, wine and cider, which the tribunal (Chairman, David Porter) found to have been imported mainly so that the traveller might reward his employees by making them gifts in kind (the cigarettes were for Mr Spencer's wife). That tribunal held that the importation was not for commercial purposes and required Customs to conduct a further review. Ms Simpson submitted that, by analogy, Mr Dean's case plainly called for reconsideration by Customs. She invited us to allow the appeal and direct a further review.
46. We are against Mr Shields in his submissions. Dealing first with the case of Gascoyne, it is our understanding that, where no abuse of process is involved – and we do not identify any such abuse here – the tribunal can lawfully take account of what is at the heart of the appeal in the present case, as in so many others, namely the Appellant's contention that the goods were not imported for commercial purposes but rather for the Appellant's own use. This appears from the Gascoyne decision at [2005] 2 WLR [55] (page 233H) per Buxton LJ.
47. It is moreover well established that this tribunal can examine the factual basis on which the decision under appeal has been arrived at.
48. In this case the Appellant has provided the tribunal with information with regard to the consumption of the goods not all of which was available to the reviewing officer Mr Crouch.
49. Firstly, we find that whilst the climax of the wedding celebrations took place at the Ramada Jarvis Hotel, Bolton, on Sunday, 20 April 2003, the celebrations extended over several days, during which members of the families and friends of the bride and groom assembled at each other's homes to cement the link forged by the wedding between the Dean and Zakir families. We find that the scale of the intended wedding was not made apparent to Customs by the Appellant and his companions when they were questioned.
50. We are therefore satisfied that the wedding involved not just 500 guests, but a greater number than that, allowing for the fact that the wedding festivities would stretch over several days, and would take place also in the homes of members of the families involved as well as at the hotel.
51. Secondly, we accept that some guests would be present on more than one day, and so have a consumption of food and drink attributable to more than one day.
52. Thirdly, we accept that at least some part of the tobacco would be smoked communally using hookahs. An example of such a hookah was brought to tribunal so that we could see for ourselves what was involved in this.
53. Fourthly, we accept that the families of the Appellant and his brother-in-law, the husband of his sister, now Mrs Zakir, are large, so that the quantities of tobacco and beer involved in the importation on 15 March 2003 might be consumed in the bosom of the family after the wedding festivities, if not at those festivities themselves. Indeed Mr Dean told us, and we accept, that he had bought such a large quantity of just one brand of beer because he was attracted by what was, in effect, a special offer – the more purchased, the greater the savings.
54. In reaching our decision we are mindful that the burden of proof as to commerciality is upon Customs. The evidence that this was a commercial importation is in our view in the balance. The suspiciously large quantities of tobacco and beer imported in this case needed to be considered in the light of the adequacy of any explanation for the importation that might exist.
55. The reviewing officer gave evidence to the tribunal that his conclusion as to commerciality was based upon the quantities of the goods. However there are other matters that reviewing officers must take into account, pursuant to article 9(2) of Council Directive 92/12/EEC, which directs Member States to take into account also –

The commercial status of the Appellant and his reasons for holding the goods;

The mode of transport used for the goods;

Any document relating to the goods;

The nature of the goods.

56. Such other evidence exists in this case.
57. The Appellant told us that he was director of a limited company with a turnover of £700,000 which was in the business of hiring out cars and vans, but that he had hired the vehicle used on this occasion from another company as his company did not have a vehicle of the required size (3½ tons). This goes to the commercial status of the Appellant and to the mode of transport used for the goods.
58. The Appellant has explained to the tribunal what was involved in the wedding festivities of his sister, particularly as to the true size of the event. This goes to his reasons for holding the goods, the documents provided relating to the goods and the nature of the goods.
59. The quantity of the goods is only one matter that Member States must consider for the purpose of article 9(2). It is only the last of the matters so specified.
60. We do not criticize Mr Crouch for not taking into account matters of which he was unaware. Moreover the opportunity has existed for the Appellant and his solicitors to increase the reviewing officer's store of knowledge, which they have attempted to do by the correspondence from the Appellant's solicitors copied in the tribunal bundle. But this tribunal has come to realize that much more might have been said.
61. We think that the flaw in the review letter is its failure to recognize that the material as to mistaken identity quoted in italics at the foot of page 2 of the letter, ie the notebook entries quoted by us in paragraph 23(7) above, shows that there could have been a miscarriage of justice, without the provision by the Appellant to Customs of the information which has now been adduced by him as evidence in this tribunal hearing. Only with such evidence might Customs have adequately weighed the various matters identified in article 9(2) and come to the conclusion - or not, as the case might be - that seizure should take place.
62. As it was, seizure took place without the Appellant having explained himself as he has now done in tribunal. As Mr Crouch points out in his review decision, the seizure is a fait accompli that this tribunal is powerless to reopen - see Gora v Customs and Excise Commissioners [2004] QB 93. Anything that the Appellant or his solicitors might say, or have said, since the seizure cannot affect the deemed forfeiture. All that this tribunal could do to redress the situation, in the light of Mr Crouch's adverse review, would be to direct a further review, if satisfied that the reviewing officer could not reasonably have arrived at his decision - see section 16(4) of the Finance Act 1994.
63. We do feel that it was unreasonable of Mr Crouch not to take account of the fact that the Appellant might have explained himself, in terms relevant to article 9(2), had he been given the opportunity following the exposure of the mistake as to his identity. We feel that Mr Crouch's decision assumes that there would be nothing that the Appellant might say that could overcome the presumption by Mr Crouch that the sheer size of the importation, and the apparent implausibility of the reason for it, mean that the goods must have been held for commercial purposes.
64. However in considering whether it has been proved that the goods were truly held for commercial purposes, nothing less than weighing all the evidence that might be relevant will do. If the evidence is not all there, because owing to a mistake it has not been assembled by Customs, one should not jump to conclusions. In particular it would be wrong to assume, because the Appellant or his representatives have not since the seizure provided Customs with additional evidence, that such evidence does not exist. That is because the burden of proof as to commerciality rests on Customs.
65. Consequently any reviewing officer would in such a situation be obliged to conclude his review in favour of the traveller. Exceptional circumstances would exist whereunder the officer could not properly decline to offer restoration of the goods. He would have to offer restoration, even though such evidence as he might possess indicates that the importation was for commercial purposes. The reason he would have to offer restoration is that, despite the strength of that evidence, it is not all the evidence that should have been regarded in the case.
66. Moreover the reviewing officer would need to disregard the deemed forfeiture, because the traveller has not "had his day in court" as the Gascoyne case provides that he ought. The Gascoyne case had not been decided by the Court of Appeal at the date of Mr Crouch's review, but it is an authority to which we ought now to have regard.
67. For the above reasons, we accept Ms Simpson's submissions and decide that neither Mr Crouch nor any other officer of Customs could reasonably have arrived at the decision not to offer restoration which is under appeal in this case. We require Her Majesty's Revenue and Customs to conduct a further review of the decision not to restore.
68. We direct that such review is to be conducted by an officer other than those hitherto involved in the Appellant's case and is to be completed within six weeks of the issue of this decision. We direct that the further review is to be conducted on the basis mentioned in paragraph 65 above, for the reasons that we have explained in this decision, and a copy of it lodged as soon as possible at the Manchester Tribunal Centre under the reference mentioned at the foot of this decision. A copy of the further review should also, of course, be sent to the Appellant's solicitors.
69. If costs cannot be agreed, we give leave for the case to be restored to the list for the limited purpose of further argument as to costs if desired. We heard argument as to the costs of the adjournment on 10 June 2005 at the conclusion of the hearing on 19 July 2005. It may help for us to indicate at this stage, without having heard further argument as to costs, that in the light of our decision on the merits, we are provisionally minded to order that all the costs of the appeal should follow the event.
70. If the tribunal is to be called upon summarily to assess the costs, schedules of costs should be mutually exchanged between the solicitors for the parties, and submitted to the Manchester Tribunal Centre, in good time before the further hearing.

MICHAEL JOHNSON

CHAIRMAN
Release Date: 12 September 2005

MAN/03/8151

Note 1    The word “satisfied” was substituted for the word “happy” which was crossed out of the notebook entry.     [Back]

Note 2    (We find this is standard practice, in the case of a seized vehicle, and is done so that a traveller can retrieve his personal belongings.)    [Back]

Note 3    (The review letter was written to the Appellant’s then solicitors.)    [Back]