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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 >> Lawrence v Revenue & Customs [2007] UKVAT(Excise) E01078 (19 December 2007) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2007/E01078.html Cite as: [2007] UKVAT(Excise) E01078, [2007] UKVAT(Excise) E1078

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E01078

Excise Duties – importation of tobacco products and alcohol from other EU member states into the UK – whether import for commercial purpose – whether goods "mixed, packed or found" with forfeited goods – Section 141 CEMA 1979 – Appeal Allowed.

EDINBURGH TRIBUNAL CENTRE

IAN LAWRENCE Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: (Chairman): Mr Kenneth Mure, QC

(Member): R L H Crawford, BA., CA., CTA

Sitting in Edinburgh on Friday 23 November 2007

for the Appellant Mr Ian Lawrence

for the Respondents Mr V Mandalia, Barrister

© CROWN COPYRIGHT 2007.
 


DECISION

Introduction

This is an Appeal against a further review dated 15 May 2007 by Mr Brian Rayden, an officer of the Respondents. The Appellant had sought to import free of duty certain goods in his car. These all were seized. At an earlier hearing on 26 March 2007 the Respondents were directed to carry out this further review in light of proceedings at Maidstone Crown Court relating to the legality of the seizure. The outcome there was that the car was restored but the goods, mainly cigarettes and tobacco and some alcoholic drink were not. The Crown Court decided that the importation was not "commercial". However, it considered that the goods were "mixed, packed or found" with other goods liable to forfeiture for the purposes of Section 141 CEMA, noted infra.

The Law

Excise duties are imposed on the importation of cigarettes and alcohol in terms of the Tobacco Products Duty Act 1979 and the Alcoholic Liquor Duties Act 1979. There is an exemption in terms of related subordinate legislation in respect of the import of non-commercial quantities i.e. for personal consumption or by family rather than for sale. However, Section 141 CEMA provides:-

"(1)… where any thing has become liable to forfeiture under the Customs and Excise Acts –

(a) … any ship, aircraft, vehicle … which has been used for the carriage, handling, deposit … of the things so liable to forfeiture … and

(b) … any other thing mixed, packed or found with the things so liable, shall also be liable to forfeiture".

The Facts

We heard evidence from the Appellant whom we found an impressive witness. He was candid, credible and reliable and it appears that his evidence was accepted by the Crown Court. While some discrepancies in the interview with HMRC's officers have been noted (see particularly the first Review) these appear to us to be trivial and at the material time it is accepted that the Appellant was tired. (See the Crown Court Decision p5D/E). The goods were not concealed. All receipts were volunteered and retained (but not produced) by the Respondents. The Respondents did not call evidence but founded on written statements to which no formal objection had been taken. Reference was also made to the terms of the Decision at Maidstone Crown Court and the Notebook of Officer Goddard (p34 et seq of Productions) containing notes of his interview with the Appellant and his passengers.

We make the following Findings-in-Fact:-

(i) on about 30 April 2005 the Appellant travelled to the Continent accompanied by his aunt, cousin's son and a friend of his. The Appellant was driving his Ford Mondeo car. Having met his sister at Bruges the Appellant and his party bought quantities of cigarettes, tobacco and alcoholic drink in Adinkerke and also in Calais. The Appellant spent about £1800 on his purchases. They intended to return that same day to the UK.

(ii) The Appellant and his party were stopped by the Respondents' officers at the UK Control Zone at Coquelles, France. In response to their requests all the goods purchased by the party were volunteered. Also, as asked, the Appellant gathered all their receipts and gave these to the Respondents. In the car's boot the Appellant's goods were packed on the left and his aunt's on the right, separated by non-dutiable items such as cleaning liquids. The goods purchased by the other passengers were on the roof rack separated by luggage. Each of the party's goods were packed in separate bags or boxes. Apart from a quantity of Lambert & Butler cigarettes the Appellant's goods were the subject of separate receipts.

(iii) The Respondents' officers ordered that all the purchases should be taken out of the car and these were placed together on one table without being distinguished. While a note taken by the senior officer was signed by the Appellant, he was tired and had not checked its terms with sufficient care.

(iv) The dutiable goods imported by the Appellant were identified and are as stated at page 7 of the initial review dated 12 September 2005. Both the Appellant and his wife at the material time were heavy smokers. The goods were bought for personal and family consumption and were not for re-sale.

(v) Earlier in 2005 the Appellant had travelled to the Continent on about 5 occasions. He did not bring back any significant dutiable goods on these occasions. He has travelled regularly to the Continent over the years, while in the Army, later on other Government business, and thereafter to visit his sister whose husband was serving in the Army and based in Germany.

Decision

The issue before this Tribunal is whether the conclusion of the further Review by Mr Rayden and his decision not to restore the excise goods was reasonable. That Review was directed in addition to the initial Review on 12 September 2005. We note also the terms of the Decision of Maidstone Crown Court which dealt with the somewhat distinct question of the legality of the seizure of the car and goods. (The car was, of course, then restored).

The first matter to be considered is whether this was a "commercial" venture. We consider that it was not and we agree with the Crown Court's conclusion in this respect. We accept the Appellant's account that he was buying only for himself, wife, daughter and daughter-in-law. Exceptionally there was a small quantity of tobacco which was purchased as a gift for a friend who tended gratuitously the Appellant's disabled mother-in-law's garden. The goods were for their consumption only and not for re-sale. They were heavy smokers at the time.

The more complex aspect is whether the Appellant's goods were for the purposes of Section 141(1)(b) "… mixed, packed or found" with other goods liable to forfeiture, here the goods of the Appellant's passengers who did not (or could not afford to) dispute the matter. In this context we were referred by Mr Mandalia to the terms of the Crown Court's decision at page 7E, which narrates –

"There is no dispute that all of the goods purchased by all four people were in the same car. Although there was no evidence of the way in which the vehicle was searched, or by whom, there was no evidence by the [Appellant] that any attempt was made to try to keep the various purchases separate and we find that the [Appellant] did accept in cross-examination that in relation to the purchase of the Lambert & Butler cigarettes, it was possible that one receipt covered partly his purchase and partly somebody else's".

This bears to conflict with the Appellant's evidence to this Tribunal about separation of the purchases and his recollection of the evidence at the Crown Court. We are handicapped in that we do not have a transcript of the evidence or any particularisation of the relative questions and answers. Further, there is no detailed narrative of the argument presented there. For instance, there is no reference to the sense of "… mixed, packed or found" applied in that context. On a purposive interpretation it seems to mean whether the goods can be separately identified and distinguished. On the evidence presented to us we consider that this criterion was satisfied. The Appellant's account to this Tribunal was that his goods had been stored separately in the left side of his car's boot, separated from his aunt's by cleaning liquids, and could thus be identified distinctly. Each of the parties' goods were in separate bags, which seems a common sense approach. The receipts, he insisted, could assist in confirming this in that he and each of his passengers had separate receipts for their own purchases except for some Lambert & Butler cigarettes. Crucially in our view an issue arises about the likely significance of the receipts in distinguishing ownership of the various goods. While this is noted in the Crown Court judgment, it does not appear to have been explored as a means of identifying each party's goods. It is not disputed that all the receipts were collected and handed over by the Appellant. We are anxious that the Appellant should not be prejudiced by the Respondents' failure to produce the receipts. He did not conceal or mislead the Respondents about the goods having been purchased duty free and he was fully co-operative in producing these and handing over the receipts. As noted supra we formed a very favourable view of the Appellant as an honest and straightforward witness. In particular we did not consider that he was exaggerating or embellishing his evidence to us in order to surmount the narrative at page 7E.

Taking all these factors into account we find that the Appellant's goods (except for the Lambert & Butler cigarettes) were not so "… mixed, packed or found…" that they could not be distinguished relatively easily for the purposes of Section 141(1)(b). We do not consider that this provision necessarily strikes at a situation where different person's goods are stored in the same vehicle or even one part of a vehicle, provided that they can reasonably readily be separately identified. We accept the Appellant's evidence that his goods were placed in the left side of the car's boot, separated from his aunt's goods by the washing up liquids and in separate bags or boxes. In addition to the further assistance likely to be derived from the receipts we note that there was apparently no dispute as between the Appellant and his three passengers as to who owned what items. (See page 7 of the initial Review). They had not "pooled" funds to make a collective purchase. Rather any "mixing" of the Appellant's goods with the others was when they were unpacked and put together on one table on the instruction of the Respondents' officers.

We therefore allow this appeal in respect of the dutiable goods imported by the Appellant with the exception of his share of the Lambert & Butler cigarettes. We consider that the conclusions of the Reviews were unreasonable.

In view of our decision in relation to the dutiable goods the matter of "proportionality" in relation to their possible forfeiture does not arise.

Costs

In principle we award costs to the Appellant. However he was not professionally represented at the Tribunal although he did have some assistance earlier from his solicitor. This aspect is thus appropriate for discussion and, if necessary, taxation in terms of Rule 29(3).

Finally we would express our gratitude to both the Appellant and Mr Mandalia for their arguments and assistance.

MR KENNETH MURE, QC CHAIRMAN
RELEASE: 19 DECEMBER 2007

EDN/07/8007