The Commissioners for HM Revenue and Customs v Butlers Ships Stores Limited
| Jurisdiction | UK Non-devolved |
| Judge | Lady Wolffe |
| Neutral Citation | [2018] UKUT 0058 (TCC) |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Subject Matter | Tax,6 March 2018 |
| Date | 06 March 2018 |
| Published date | 06 March 2018 |
[2018] UKUT 0058 (TCC)
Appeal number: UT/2016/0197
EXCISE DUTY- excise duty suspension arrangements - electronic movement
control system - jurisdiction
UPPER TRIBUNAL
TAX AND CHANCERY CHAMBER
BUTLERS SHIP STORES LIMITED Appellants
- and -
THE COMMISSIONERS FOR HER MAJESTY’S
REVENUE AND CUSTOMS Respondents
TRIBUNAL: THE HONOURABLE LADY WOLFFE
(Sitting as a Judge of the Upper Tribunal)
Sitting in public at The Tribunal Centre, George House, Edinburgh on 24-25 October and 3
November 2017
Mr Tristan Thornton of TT Tax, London for the Appellant
Mr Ross Anderson, advocate, instructed by the Office of the Advocate General for the
Respondents
© CROWN COPYRIGHT 2018
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DETERMINATION AND REASONS
Introduction
1. This is an appeal against the decision of the First-tier Tribunal (Tax Chamber)
(“the Decision” and “the FTT”, respectively) refusing the appellants’ appeal against a
statutory excise duty assessment dated 19 October 2014 (“the Assessment”) made by the
respondents, and confirmed on review on 19 January 2015 (“the Review”), in the sum of
£1,766,766.85. (This figure forms part of a sum of £2,277,935.34, comprising import duty
of £101,999, excise duty of £1,766,766.85 and import VAT of £409,169.49. The import
duty and the VAT are not in dispute in these proceedings and have been paid.)
2. The appellants operate from premises at Blaikies Quay, Aberdeen (“the premises”) which
are an “authorised customs warehouse” and an “authorised excise warehouse” (these terms
are defined below).
3. In or between about 2012 and 2014 the appellants dispatched (putting it neutrally) a large
quantity of excise goods, namely cigarettes (“the Goods”) to two customers (who also
operate authorised excise warehouses) in Scotland (“the recipient excise warehouses”). It is
now accepted that this constituted an irregular importation such as to render the appellants
liable to customs duty on the Goods, being the form of impost due when goods are first
imported into the territory of a Member State within the EU. The appellants accept this and
have paid the import duty and VAT.
4. However, the respondents contend that the dispatch of the Goods from the premises also
triggered an excise duty point, rendering the appellants liable for excise duty. The
appellants dispute this.
5. Mr Tristan Thornton, of TT Tax, London, appeared on behalf of appellants and Mr Ross
Anderson, advocate, instructed by the Office of the Advocate General, appeared on behalf
of the respondents (HMRC) before me. The same representatives had also appeared before
Tribunal Judge J. Gordon Reid QC FCIArb. Before the FTT Mr Thornton led no evidence;
Mr Anderson led the evidence of Laura Cowie, an HMRC official, whom the Judge Reid
QC described as having considerable experience in customs duties.
Grounds of appeal
6. The appellants were granted permission to appeal on three grounds of appeal (as
reformulated by Judge Richardson) as follows:
1) The FTT erred in law in concluding:
(i) that customs suspensive arrangements ended before the Goods left the appellants’
warehouse (ie the premises);
(ii) that an excise duty point was triggered at the point at which the Goods left customs
suspensive arrangements, and
(iii) in particular (and without limiting point (ii) above) by failing to conclude that the
Goods were subject to an excise duty suspension arrangement while being
transported to the recipient excise warehouses.
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I shall refer to grounds 1(ii) and (ii) as “the excise duty issue”.
2) The FTT erred in law in failing to give the appellants permission to rely on evidence in
the form of two lever arch files of electronic movement control system (“EMCS”)
records and/or erred in law in failing to consider that evidence (“the EMCS issue”);
3) The FTT erred in law
(i) in concluding that it had jurisdiction only to make determinations of
the kind set out in section 16(5) of Finance Act 1994 (“the FA 1994”) and
that it could not, in addition, make determinations of the kind set out in
section 16(4) of the FA 1994, and
(ii) in failing to apply the correct legal principles to the facts that it had
found, with the result that it made no determinations of the kind set out in
section 16(4) of the FA 1994.
I refer to this ground as “the jurisdiction issue”.
Scope of the appeal
7. It is necessary to say something about the scope of this appeal.
8. The appellants sought permission to appeal the FTT decision. In his decision on the
application for permission to appeal, dated 27 September 2016 (the “PTA Decision”), Judge
Jonathan Richards declined to review the FTT judge’s decision as he was not satisfied that it
contained an error of law. In considering the application for permission to appeal,
Judge Richards felt compelled to observe that a general assertion that the FTT’s conclusion
was against the weight of the evidence and therefore wrong was not a permissible ground of
appeal. This is because there is in general no appeal against findings in fact by the FTT,
unless no person acting judicially and properly instructed as to the relevant law could have
come to the determination under appeal: Edwards v Bairstow [1956] AC 14. There was no
relevant Edwards v Bairstow review in the appellants’ proposed grounds of appeal.
Accordingly, Judge Richards found it necessary to formulate three short grounds on which
permission to appeal would be granted. I have noted those above. However, the appellants
were not satisfied with the PTA Decision and renewed their application for permission to
appeal on their original grounds to the UT. That application was refused by a decision of
UT Judge Bishopp dated 25 October 2016.
9. Accordingly, the only grounds on which the appellant have permission to appeal to the UT
are the grounds reformulated by Judge Richards in the PTA Decision, and recorded at
paragraph 6 above. Notwithstanding this, the appellants’ skeleton strayed beyond the
permitted grounds of appeal. Further, one of the preliminary issues Mr Thornton raised on
the first day of this appeal concerned the proper scope of this appeal and how the
reformulated grounds were to be interpreted. The first half-day was taken up with
arguments on that matter and with the appellants’ late motion for the allowance of additional
documents (totalling some 600 pages). The additional documents sought to be admitted, but
which application I refused, were said to relate to the second ground of appeal. I record my
decision on these matters at the end of this decision. It was also a feature of Mr Thornton’s
submissions to assert matters of fact that were not proved or which were inconsistent with
the (unchallenged) findings in fact by the FTT in the Decision. These matters are outwith
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