Kevan Denley v The Commissioners for HM Revenue and Customs
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Newey,Judge Bishopp |
| Neutral Citation | [2017] UKUT 0340 (TCC) |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Subject Matter | Tax,25 August 2017 |
| Date | 25 August 2017 |
| Published date | 25 August 2017 |
[2017] UKUT 0340 (TCC)
Appeal number: UT/2016/0020
EXCISE DUTIES — traveller stopped in UK control zone within
France — in possession of 18kg of tobacco — traveller acknowledging
that majority of tobacco intended for family members reimbursing cost
— goods seized — no condemnation proceedings and goods therefore
deemed to be forfeit — assessment to duty made and wrongdoing
penalty imposed — whether duty point arose in control zone — not a
matter within jurisdiction of tribunal but which must be raised in
condemnation proceedings — whether error in statutory reference
invalidates assessment to duty — no — whether offer of review of
penalty satisfied statutory requirements — yes — whether cumulative
effect of non-restoration, assessment and penalty disproportionate —
no — appeal dismissed
UPPER TRIBUNAL (TAX AND CHANCERY CHAMBER)
KEVAN DENLEY Appellant
- and -
THE COMMISSIONERS FOR HER MAJESTY’S
REVENUE AND CUSTOMS
Respondents
TRIBUNAL: MR JUSTICE NEWEY
JUDGE COLIN BISHOPP
Sitting in public in London on 28 and 29 June 2017
Miss Sadiya Choudhury and Mr Thomas Chacko, appearing on a pro bono basis,
for the Appellant
Mr Kieron Beal QC and Mr Brendan McGurk, instructed by the General Counsel
and Solicitor to HM Revenue and Customs, for the Respondents
© CROWN COPYRIGHT 2017
2
DECISION
Introduction
1. In this case, Mr Kevan Denley challenges the refusal to restore some hand-5 rolling tobacco that had been seized from him, an assessment or purported
assessment to excise duty and a related penalty. The First-tier Tribunal
(“the FTT”) (Judge Michael Connell and Ms Liz Pollard) dismissed Mr
Denley’s appeal, but he relies before us on points that were not taken
before the FTT, where he appeared in person. He now has the benefit of 10 representation on a pro bono basis from Miss Sadiya Choudhury and Mr
Thomas Chacko.
2. In what follows the shorthand “HMRC” includes both HM Revenue and
Customs and the UK Border Agency. 15
Narrative
3. On 25 March 2012, Mr Denley was stopped by Officer Emma Curtis of the
UK Border Force in the UK Control Zone at the French end of the Channel 20 Tunnel in Coquelles (“the Coquelles Control Zone”). He was returning to
the United Kingdom as a Eurolines coach passenger.
4. Mr Denley was carrying 36 packets of hand-rolling tobacco. Since each
packet contained 500g of tobacco, he had 18kg of tobacco in total. 25
5. Mr Denley explained to Officer Curtis that six of the packets were for him
and the remainder for his brothers and sisters. He said that he had received
£200 from each of five members of his family. He also told the Officer
that he had bought eight 500g packets (4kg in all) six weeks previously. 30
6. Taking the view that the tobacco that Mr Denley had with him was held
for a commercial purpose, Officer Curtis seized it.
7. Since Mr Denley’s coach was about to leave, Officer Curtis told him that 35 documents including a “Seizure Information Notice”, Notice 12A (which
explained that a challenge to the legality of the seizure had to be made
within one month) and a “Warning Notice” (which made it clear that the
seizure was without prejudice to any other action that could be taken,
including issuing an assessment for evaded excise duty and a wrongdoing 40 penalty) would be posted to him (as they then were). She also said that he
had one month in which to appeal. In this respect, the FTT said (in
paragraph 56 of its decision):
“There is no reason why [Mr Denley] should not have received the 45 seizure information notice and other notices sent to him by HMRC
on 25 March 2012. In any event he was advised that he had thirty
days within which to appeal the seizure to the Magistrates’ Court
failing which the seizure will be deemed lawful.”
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