S Darwesh v Her Majesty's Revenue & Customs, E 01171

E01171

Excise – seizure of tobacco and alcohol – goods packed in luggage without taxpayer’s knowledge – condemnation proceedings determined in taxpayer’s absence – whether decision not to restore the goods reasonable – yes – appeal dismissed

S DARWESH Appellant

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Tribunal: Malcolm Gammie CBE QC (Chairman)
S K Das

Sitting in public in London on 24^th September 2008

The Appellant appeared in person

Robert Jones (Counsel) instructed by the Acting Solicitor for HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2009

DECISION

1. This is an appeal by Mr S Darwesh against the seizure of 3,800 cigarettes and 9 litres of spirits on 8 August 2007 at Heathrow Airport. The total duty payable in respect of the seized goods was £644.91. Mr Darwesh conducted his own appeal and gave evidence of the relevant events. We also heard the evidence of Helen Perkins, a Higher Officer of the Respondents who had conducted the review of Mr Darwesh’s case. The Respondents produced a bundle of documents including a copy of the notebooks of the Officers who had made the seizure and the correspondence between the parties.

2. Mr Darwesh returned to London from Cairo on 8^th August 2007 and entered the Customs Red Channel (“Goods to Declare” for persons arriving from “Third Countries”) at Heathrow Airport in order to declare goods that he was carrying. He had to wait for one of the Respondents’ Officers of the Respondents but was eventually approached and asked what goods he had to declare. The Officer’s notebook records the following exchanges:

Officer: “What do you have to declare?”

Darwesh: “I have some alcohol.”

Mr Darwesh showed the Officer two bags containing 5 litre bottles of spirits.

Officer: “Anything else?”

Darwesh: “No.”

Officer: “Is this all your luggage?”

Darwesh: “Yes.”

Officer: “Did you pack the bags yourself?”

Darwesh: “Yes.”

Officer: “Has anybody given you anything to carry?”

Darwesh: “No.”

3. The Officer then informed Mr Darwesh that he wished to search his luggage. Before doing so, the Officer noticed that Mr Darwesh had a carton of 200 cigarettes on his trolley in a see-through bag. The Officer’s note book records the following exchanges:

Officer: “Do you have any more cigarettes”

Darwesh: “Yes, I have six cartons.”

Officer: “Why did you not declare them to me?”

Darwesh: “I am declaring them to you.”

4. Mr Darwesh’s luggage was searched and this revealed 3,800 cigarettes of various brands and a further 4 litres of spirits. The Officer asked Mr Darwesh why he had not declared the goods at which point Mr Darwesh became agitated and loud, saying that he was unwell. The Officer’s notebook records that Mr Darwesh told him his sister had packed his bag. Mr Darwesh insisted that he had been honest and that was why he had entered the red channel. Mr Darwesh demanded to speak to the Officer’s manager and this was arranged once he had calmed down. The manager’s notebook records that he listened to Mr Darwesh’s complaint about the seizure of the goods, given that he had declared them. The manager’s notebook records that Mr Darwesh conceded that he had not declared all the goods.

5. The manager explained to Mr Darwesh that the Officer had sought his advice as to whether he had any option but to seize the goods and the manager had instructed him that he had no option. The Officer issued Mr Darwesh with Customs Notice number 1, Notice of Seizure (C156), Notice 12A and all the goods were seized. The Officer told Mr Darwesh that he would be writing an account of the incident, including the fact that Mr Darwesh had originally declared 5 litres of sprits and, on further questioning, six cartons of cigarettes. The Officer’s notebook records that Mr Darwesh was offered but declined the opportunity of waiting and reading the Officer’s notes. The notes record that Mr Darwesh agreed with the Officer’s oral summary of what had occurred.

6. In evidence Mr Darwesh explained that he (or members of his family) had homes in the UK Egypt and Sweden. He was a regular traveller to Cairo, going there about four times a year. He said that he would buy duty free goods at Heathrow on the outward journey on the basis that he could buy as much as he wanted and the goods were cheaper and of better quality In Cairo there was always a risk that goods would be counterfeit On this occasion he had travelled to Cairo in early June expecting to stay two or three weeks but he had been taken ill and hospitalised, so that he was only well enough to return in August. He had bought 13 cartons of cigarettes intending to give 3 to his mother-in-law in Sweden and 1...