Roger Alan Upton v The Commissioners of Customs & Excise, E 00597
| Jurisdiction | UK Non-devolved |
| Judge | MICHAEL S JOHNSON |
| Judgment Date | 19 December 2003 |
| Respondent | The Commissioners of Customs & Excise |
| Appellant | Roger Alan Upton |
| Reference | E 00597 |
| Court | First-tier Tribunal (Tax Chamber) |
E00597
EXCISE DUTY — excise goods and truck transporting goods seized at Dover on return to UK — truck restored on payment of fee in the amount of duty sought to be evaded — goods condemned as forfeit by the court — appellant contending before tribunal that goods purchased in Belgium for his own use — attempted deception found to have been practised by appellant with a view to evasion of duty — held on facts to be reasonable for Customs review officer to conclude that vehicle should not be restored save on payment of fee in the amount of the duty sought to be evaded — appeal dismissed
MANCHESTER TRIBUNAL CENTRE
ROGER ALAN UPTON Appellant
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: Mr M S Johnson (Chairman)
Mr R Grice
Sitting in public in Birmingham on the 30th October 2003
The Appellant appeared in person
Mr J Puzey, counsel instructed by the Solicitor for the Customs and Excise, for the Respondents
© CROWN COPYRIGHT 2003
DECISION
-
This is an appeal under section 16 of the Finance Act 1994 (“the 1994 Act”) against a decision of the Commissioners of Customs and Excise (“Customs”) not to offer restoration of a seized vehicle other than on payment of a fee of £2,170.00. The vehicle, a Renault Magnum Tractor Unit, Registration No L975 WGO (“the truck”) was seized at Dover Eastern Docks on 5 September 2001.
-
The appellant gave evidence before the tribunal and was cross-examined by Mr Puzey, counsel appearing for Customs. The tribunal did not hear from any other witness; however we also had the benefit of a folder of copy documents relevant to the appeal handed in by Mr Puzey. This folder contained inter alia an unchallenged witness statement from Mr Andrew Simon Trollope, an employee of P & O Stena Line Limited, and formerly an employee of P & O European Ferries (Dover) Limited, giving evidence of cross-channel vehicle freight movements for the truck. The folder also contained unchallenged witness statements from the Customs officer who conducted the review in this case, Mr Raymond Alfred Payne, and from Mr Gerry Dolan of Customs, as to the then policy of Customs in these cases.
-
The following are the facts as we have found them to be.
-
The appellant was on 5 September 2001 driving the truck back from the continent on behalf of his employers. He was transporting a load of chipped potatoes in the trailer attached to the truck. He had with him in the cab of the truck a quantity of excise goods (“the goods”) consisting of the following:
14 Kg hand-rolling tobacco;
6,000 cigarettes.
He had bought these at a tobacco outlet in Adinkerke, Belgium.
-
On the appellant’s arrival in Dover from France, Customs had regard to the Excise Duties (Personal Reliefs) Order 1992 SI 1992/3155 (“the PRO”), which was then in force. Under article 3 of the PRO, a community traveller entering the UK was relieved from payment of any duty of excise on excise goods obtained for his own use in the course of cross-border shopping and which he had transported. The intention of the PRO was to give proper effect in UK domestic law to EC Council Directive 92/12 (“the Excise Directive”)1.
-
An officer of Customs interviewed the appellant. The appellant relied upon his right in European Law freely to transport excise goods for his own use between member states of the European Community without payment of excise duty in addition to that paid when he bought the goods in Belgium. He maintained that the goods were for the personal use of himself and his wife, with occasional gifts for members of his family. He told Customs that he smoked 80 to 100 cigarettes per day, that his wife smoked 60, and that he had had £2,000 to spend. He said that he had bought the amount of tobacco goods that he could afford.
-
Customs were not satisfied with what the appellant had told them, so they seized the goods for the following stated reasons:
-
the goods exceeded in quantity the indicative levels specified in the Schedule to the PRO;
-
the appellant was aware of those levels;
-
the stated consumption rates for the goods appeared to be excessive;
-
the appellant had admitted that he had attempted to deceive Customs in not informing Customs that the goods were in excess of the indicative levels; and
-
the appellant had concealed the goods in the truck.
-
Customs also seized the truck itself, in reliance upon section 141 of the Customs and Excise Management Act 1979 (“the 1979 Act”). Restoration of the truck was however immediately offered by Customs on payment of a fee of £2,170.00. That fee was paid and the truck was restored to the appellant’s employers.
-
On 21 September 2001, the appellant wrote to Customs applying for the return of the goods and for the repayment of the restoration fee. In his letter, the appellant stated that the goods had been brought into the UK for his and his wife’s personal use. Customs replied by letter dated 3 October 2001, stating that condemnation proceedings would be instituted under Schedule 3 of the 1979 Act in respect of the goods. We were informed that in due course, by order dated 1 May 2002, the goods were condemned as forfeited by the court. We were not shown a copy of that order.
-
It is not open to this tribunal to investigate the legitimacy of the matters considered and ruled upon by the court: see Gora v C & E Comrs [2002] V & DR 49; [2003] EWCA Civ 525 (Court of Appeal, 11 April 2003). We emphasize this point because it was suggested before us by the appellant that the correct procedures had not been followed by the court. If that is correct – and we express no view – the appellant’s remedy would have been to mount an appeal against the ruling of the court. For our part, we cannot properly reopen the matter of forfeiture of the goods.
-
The appellant is however entitled to raise before the tribunal the issue of private use for the purposes of seeking to invoke the discretionary procedure of restoration: see C & E Comrs v Dickinson [2003] EWHC 2358 (Ch) (15 October 2003) per Peter Smith J at paragraph...
To continue reading
Request your trial