C00255

CUSTOMS DUTY – Tariff classification – Uncooked peppered turkey – Whether seasoned within Add Note 6(a) to CN Chap 16 – Naked eye and taste tests – Verification outsourced by Customs – No written instructions as to interpretation of Note 6(a) and content of reports – Reclassification and demands based solely on reports – Irregularities in verification – No close co-ordination within Code Art 13.3 – No verification with Art 71.2 – Outcome possibly different without irregularities – Community Customs Code (Council Reg (EEC) No.2913/92) Art 13.3, 37, 69.2 and 71.2 – Post-clearance demands quashed – Appeals allowed

LONDON TRIBUNAL CENTRE

	PADLEY LTD (LON/04/7053)	           Appellant

-	and –

	THE COMMISSIONERS FOR HER MAJESTY’S REVENUE & CUSTOMS 	 Respondents

	AGROEUROPA SPA (LON/05/7046)	           Appellant

-	and –

	THE COMMISSIONERS FOR HER MAJESTY’S REVENUE & CUSTOMS 	 Respondents

				Tribunal:	THEODORE WALLACE (Chairman)
						MRS SHAHWAR SADEQUE, BSc, MPhil
					 	
Sitting in public in London on 4 to 7 December 2007 and 28 to 31 January 2008

Nicola Shaw, instructed by Ince and Co, for Padley Ltd, and Valentina Sloane, instructed by Wragg & Co, for  AgroEuropa Spa

Owain Thomas, instructed by the Solicitor for HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2008

DECISION 

1.	These two appeals concern post-clearance demands in respect of the importation from Brazil and Chile of consignments of frozen uncooked peppered turkey meat which was entered by the Appellants under commodity code 1602.  

2.	The appeal by Padley Ltd (“Padley”) arises from a consignment of 24,000 kgs imported from Brazil and entered on 18 February 2004 as frozen spiced turkey.  A sample was sent by Customs for analysis at Campden and Chorleywood Food Research Association Group (“CCFRA”) and following analysis was reclassified under 0207. On 24 May 2004 a post-clearance demand was issued for £17,279.83 being the difference between the duty under 0207 and the £3,012.46 paid on entry under 1602 which was 8.5% of US $64,913.40.  The appeal was expressed as being against the review decision on 8 October 2004. In fact the review by Steve Palmer was not carried out within the 45 day time limit, so that under section 16(1) of the Finance Act 1994 the appeal is against the deemed confirmation of the post clearance demand note. We were told that this was a test case on the classification of prepared/seasoned turkey meat involving £2.5 million of duty for Padley.  The Tribunal has power under section 16(5) of the Finance Act 1994 to quash or vary the decision or to substitute our own decision.

3.	The appeal of AgroEuropa Spa (“AgroEuropa”), an Italian company, arises from two consignments, one entered on 23 October 2003 having been imported via Tilbury, the other entered on 25 March 2004 having been imported via Felixstowe.  Both were imported from Chile.  Following reclassification a post-clearance demand note (C1802/2100/04) was issued for £25,458.94 on 18 December 2004 covering both consignments.

4.	AgroEuropa appealed against a review decision dated 10 March 2005 confirming the post-clearance demand on two grounds, the first being that the correct classification should be under 1602.  The second ground concerned procedural matters, the first concerning failure by Customs to take and test a sample from one consignment, the second arising out of the withdrawal of an earlier demand in respect of the second consignment following the destruction of the second sample taken by Customs.

5.	On 21 October 2005 the Tribunal directed that the first ground of appeal by AgroEuropa, being common to that in Padley, should be tried as a preliminary issue and heard at the same time as the appeal in Padley and that the second ground of appeal in AgroEuropa be stood over to be heard later.

6.	It is convenient at this stage to set out the parts of chapters 2 and 16 of the Combined Nomenclature which are relevant.  

7.	Chapter 2 is headed “Meat and Edible meat offal”.  Additional Note 6(a) to Chapter 2 which was the main area of dispute provides as follows:

“6(a)  Uncooked seasoned meats fall within Chapter 16.  ‘Seasoned meat’ shall be uncooked meat that has been seasoned either in depth or over the whole surface of the product with seasoning either visible to the naked eye or clearly distinguishable by taste.”

Heading 0207 27 10 covers frozen meat or edible offal of poultry heading 0105

	“—  Of turkey:
	  —  —  Cuts and offal, frozen
	  —  —  — Cuts
	  —  —  —  — Boneless”

8.	Chapter 16 covers preparations of meat.  Note 1 provides, 

“1.	This chapter does not cover meat … prepared or preserved by the processes specified in Chapter 2 …”	

Heading 1602 31 11 covers (inter alia) prepared or preserved meat other than sausages and similar products

	“—  — Of turkeys
	  —  —  — Containing 57% or more by weight of poultry meat or offal 
	  —  —  —  — Containing exclusively uncooked turkey meat.”

Evidence and Facts in Padley

9.	The following facts were agreed or contained in undisputed documents.

10.	Padley is a trader and importer of meat and meat products.  The goods in question were imported in a container on 18 February 2004.  The Commodity Code declared was 1602 31 11 and the product was described as “frozen spiced turkey”.  This attracted an ad valorem duty rate of 8.5%. The invoice from Invicta Foods Ltd dated 12 February 2004 described the goods as “Frozen Peppered Turkey Lobes” and was for US $64,913.40 including insurance.  The consignment came from Brazil and the EU port of destination was Tilbury.  The Certificate of Origin dated 2 February 2004 stated that the goods were “Brazilian Fresh Frozen Boneless Skinless Half Turkey Breast, Uncalibrated, Spiced with White Pepper”.  The consignment was packed in 20 palletainers each holding 120 packs of meat. 

11.	On 25 February 2004 a Customs officer selected three complete packs of meat as samples.  One of the samples was sent for testing to CCFRA.  One of the samples was provided to Padley.  The third was to be retained as a duplicate sample.  The original sample was received on 26 February 2004 at CCFRA.  The condition of the goods was noted to be “Good, frozen”.  The results were reported in a certificate which was issued on 30 March 2004 (CE/RED/77654/058 which we refer to as “058”).  The report (3/18), which stated that the apparent fat free meat content was 102%, included the following,

“The sample consisted of frozen, uncooked, boneless, skinless turkey breasts.  There was a detectable odour of pepper when the bag was opened.  White pepper could be seen in thick patches over the entire portions, see attached photograph.  However, the pepper was not completely coating the breast portions.  

When cooked seasoning could be seen on the surface and there was a detectable taste of pepper where this seasoning was visible, but it was not detectable throughout the entire portion.”

12.	Janet Jones, of the Tariff Classification service, issued a liability ruling to Mr Smith on 28 April 2004.  This was notified to Padley on Form C22 on 22 May 2004.  The ruling stated,

“Classification is determined by General Rules 1 and 6 together with the text to CN Codes 0207 and sub-heading 020727, taric code 02072710.  When cooked, seasoning could be seen on the surface and there was a detectable taste of pepper where this seasoning was visible, but it was not detectable throughout the entire portion.  Excluded from Chapter 16 by virtue of Additional Note 6(a) to Chapter 02.  Meat is not visibly seasoned over its entire surface.”

A letter from Customs’ solicitors dated 8 July 2006 stated that Janet Jones relied exclusively on CCFRA’s findings and photographs. A Post Clearance Demand Note (C 18) was issued on 24 May 2004 by Timothy Mark Smith for the sum of £17,279.83.  At the time of importation Code 0207 27 10 attracted a standard duty of 85.10 euros per 100 kg and a safeguard charge of 38 euros per 100 kg.  This gives a total liability of £20,292.29 on a consignment of 24,000 kgs of which £3,012.46 had been paid on entry.  In a late review decision dated 8 October 2004 Steve Palmer upheld the decision to issue the C18 in respect of the turkey breasts on the basis that the products were properly classified in Chapter 2. 

13.	On 8 March 2007 Padley was informed that the duplicate sample retained by Customs had been lost in a freezer breakdown. On the fourth day of the hearing (see paragraph 68 below) Louise Gearey, of CCFRA, produced an Analysis Request Form and a Visual Assessment Sheet both of which preceded the Report.  The Visual Assessment Sheet (3/21 E) was marked as allocated by Miss Gearey to Jayne, whose surname is Arnold. Against 058 there appeared the following in Jayne Arnold’s writing:

“Green polythene bag, containing boneless, skinless turkey meat portions.  Strong smell of pepper when opened and pepper could be seen coating the entire portion although very patchy in places.  Not on total surface.
Taste test when cooked – pepper could be seen and tasted where visible by one assessor.  No pepper taste where not visible (by all assessors).”

The Analysis Request Form (3/21D) recorded the sample as having arrived on 26 February 2004.  Part was in the writing of Megan Davies and part in that of Miss Gearey.  The following was in Megan Davies’ writing:

“Green polythene bag containing boneless, skinless turkey breast portions.  Strong smell of pepper when opened and pepper could be seen coating the entire portion.”

Before the word coating there was an arrow with the words “in patches” in Miss Gearey’s hand and after “entire portion” the words “not completely covered”.  Also in Miss Gearey’s hand appeared “Note. None on the bag, nothing significant in liquor.”  Against “Cooking and Tasting” Megan Davies had written, “pepper could be seen and tasted when cooked”.  Miss Gearey had added “not throughout”, “only where visible” and “Note.  Only one taster could detect pepper”.  That form was signed by Megan Davies who was one of the assessors.  Prices for the work were marked on the side: £25.75 for the visual test, £36.00 for cooking and tasting and £102.70 for six analysis tests including one for the fat free meat content, making a total of £164.75.

14.	A laboratory report by Leatherhead Food International dated 21 May 2004  stated the following:

“Sample comprised of 10 pieces of breast, no skin, no bone.  On opening the inner bag there was an odour characteristic of pepper.  Yellow brown flecks characteristic of ground pepper on the samples.  Significant coverage on all surfaces when samples separated.  No liquor in inner bag and a temperature of –1.0ºC was recorded from inside the meat.”

15.	Three witnesses were called for Padley : John Prendergest, director, Rosanna Valente de Mello, quality control manager of the producer in Brazil, and Dr David Kilcast, BSc, PhD, of Leatherhead Food International. All confirmed witness statements and were cross-examined.

16.	Mr Prendergast stated that the disputed product had been imported into the UK and declared under code 1602 by Padley and other British importers since 1999.  There were no reclassifications until 2003, from when approximately 90% of consignments sampled had been reclassified to 0207.  When selling seasoned turkey meat to customers Padley factored in the Chapter 16 duty rate; if the classification under Chapter 2 was upheld the sales would have been at a loss. He stated that it was known in the market that the product was prepared by way of seasoning with pepper at a rate of at least 0.2 – 0.3%.  The market treated the product as a prepared product as opposed to a fresh product.

17.	He stated that published statistics showed a massive increase in imports to Germany and a dramatic reduction in UK imports compared with 2003.  He produced a table showing imports to Germany of 23,340 tons in 2002, 25,895 tons in 2003, 34,632 tons in 2004 and 50,377 tons in 2005; the UK figures were 11,820 tons in 2002, 13,429 tons in 2003, 4,450 tons in 2004 and 603 tons in 2005; figures for the Netherlands were 9,918 in 2002, 17,535 tons in 2003, 29,013 tons in 2004 and 21,866 tons in 2005.  He stated that importers had chosen to import these products via other EU member states where identical products were routinely regarded as correct under 1602.  Padley had never had a product reclassified in this manner other than in the UK.  Two identical sample blocks of the product from a consignment arriving in the EU in June 2005 had been submitted by other companies for Binding Tariff Information : German Customs had classified the product under 1602, the UK Customs had classified it under 0207.

18.	Mr Prendergast said that there was no specific quota for seasoned turkey meat in 2004; Regulation 617/2007 provided for a quota of 92,300.  None of that quota was currently being imported into the UK.

19.	He said that the Appellant had tried repeatedly to obtain information from Customs and CCFRA as to what criteria were being applied.  The Appellant had offered to go to CCFRA with a test sample, but Miss Gearey of CCFRA had said that the Appellant was not entitled to see the procedures.  He was also told this by Mr Palmer.

20.	Cross-examined, he told Mr Thomas that customers ordered seasoned turkey meat referring it as prepared.  He said that the table of imports under 1602 covered all prepared turkey imports, not just those by the Appellant.  He agreed that the statistics did not show the proportion sampled.

21.	Miss de Mello gave evidence by video link from Brazil.  She supplied a video which the Tribunal viewed.  She stated that the producer, Doux-Frangosul SA, is a subsidiary of Groupe Doux, a major European producer of poultry products, and employs approximately 8,000 persons in Brazil.

22.	She stated that product 1221 is frozen boneless skinless turkey half breast spiced with pepper.  The consignment in dispute was produced on 10 and 12 to 14 January 2004.  She produced the quality control records.  The pepper used was grinded grainy white pepper.  Following slaughter and evisceration, after a veterinary inspection the carcasses were spin chilled in refrigerated water before de-boning; the breasts were then skinned and trimmed.  A 1.5km Semil, model DP-2000, was used to season the breasts.  The breasts were placed on a conveyor belt and passed through two continuous curtains of pepper falling from two separate hoppers positioned above and across the entire width of the conveyer belt.  While passing through the first curtain pepper was applied to the top and side surfaces.  The breasts were then automatically turned upside down and passed through a second curtain which applied pepper to the underneath and other side surfaces.  At the exit from the automatic line a trained operator visually examined all breasts to ensure that they were seasoned over the whole surface, when necessary adding further pepper.

23.	She stated that a member of the quality control team checked the proper functioning of the automatic seasoning line, the conveyor belts and the pepper curtains on an hourly basis, also examining breasts at the exit to confirm that they were seasoned over the whole surface. She produced the control records for the relevant dates.  In addition every hour a sample breast was weighed before and after passing through the seasoning line to determine the percentage of pepper actually applied. The relevant records showed that 2 to 4 grams of pepper had been applied per kg.  The quantity of pepper used by each eight hour shift was also checked.

24.	Cross-examined Miss de Mello told Mr Thomas that she had not seen the consignment herself, her employees did the inspection.  The individual portions were not weighed, only the hourly sample.  She said that it was possible that pepper did not fall evenly over a portion, which was why it was checked manually to check that it was spread evenly.  She did not know how many kilograms per hour were produced or how many per day.  When the hourly sample was weighed, the operative knew that it would be tested.  The weighing machine was checked daily with standard weights and calibrated monthly.

25.	She told the Tribunal that white pepper was used rather than black because customers preferred it. The conveyor belt was a metal grill. The pepper that fell through the grill fell onto a stainless tray and was returned to the hopper. The machine was stopped to do this.  At the end of the shift the pepper that remained was disposed of.

26.	Dr Kilcast confirmed his statement.  He is a Fellow of the Institute of Food Science and Technology and a Chartered Scientist.  He has worked at Leatherhead Food International since 1981 specialising on aspects of sensory perception of food quality relevant to the food and drink business.  He stated that he has published extensively in the referenced literature and presented at numerous international conferences.

27.	He stated that on 24 May 2007 he visited CCFRA with Mr Prendergast to examine the suitability of a retained sample of peppered turkey breast for use as an exhibit before the Tribunal, in particular whether it was suitable for visual and taste evaluation purposes.

28.	He produced a report dated 15 July 2007.  In the report he stated that on arrival the sample was ready for inspection in a white plastic tray with a transparent plastic overwrap removed.  It did not have the visual appearance of a frozen sample and Miss Gearey confirmed that it had been left out overnight to thaw but might not be fully thawed internally.  It appeared to consist of several pieces of breast that had been compressed into an intimate mass.  There was visual evidence of peppering over the surface.  Miss Gearey had said that it was not possible to identify the region from         which the portions for analysis were removed as the block was fully thawed for the original sampling, samples were removed and the remaining sample manually compressed back into a compact mass before refreezing.  She had said that this thaw/handle/compress/refreeze cycle had occurred four times for different inspection procedures.  Later correspondence had confirmed that it was fully defrosted for the initial analysis and partially defrosted on three subsequent occasions.  At paragraphs 4.6 and 4.7 his report read,

“4.6 	Given the exceptionally heavy physical abuse that this sample would have received prior to examination at a tribunal, it is inconceivable that the surface distribution of seasoning would reflect the nature of the distribution at the time of the initial sampling.  The partial defrosting is likely to have affected the surface condition in the same way as the full defrosting.  Consequently the visual appearance of the retained sample will not correspond to that at the time of the original testing.

4.7	In addition, it should also be pointed out that, in view of the number of freeze/thaw cycles and the extent of manual handling that this sample has been exposed to, this sample is unsuitable for evaluation of taste and textural characteristics on grounds of health and safety.”

Dr Kilcast concluded that the sample could not be used as a reliable measure of the original product as sampled in 2004 by CCFRA, either in visual appearance or for evaluating taste and textural characteristics.

29.	Dr Kilcast said that the surface appearance was inevitably changed because any food product will be changed in structure by freezing and thawing, especially in repeated cycles.  He said that the effect is unpredictable, being different for different foods but that the structure would be changed.  A loss of water occurs when meat is thawed and this will possibly loosen the seasoning coating on the surface.  The separation of the breast photographed and putting it back involved quite a high degree of handling of the surface.  Combined with loss of moisture it would almost certainly result in seasoning being redistributed over the surface; not much would be lost on the hands.  The sample which he saw was clearly several breasts in a mass and not quite as in the photograph exhibited.

30.	Cross-examined, he told Mr Thomas that he was first involved in the case in May 2007; he did not know Mr Prendergast before that.

31.	He said that to his recollection Miss Gearey had used the word “compress”, he did not think that he was mistaken.  Inevitably putting the pieces back into a bag involved compression as did putting them into a bag in the factory.  As far as he could see the external surfaces had been defrosted to a centimetre or so.  He said that in terms of the standard practice for handling frozen foods, the handling of the retained sample on four occasions was “exceptional abuse”. He denied that this was overstated.  He agreed that the photograph at 2/181 of the Padley bundle which was a photograph of one portion was a reasonable representation of the seasoning which he saw in 2007.  He said that there was a very strong possibility that the seasoning may have been loosened, but had not carried out experiments himself.  He could not speak to the Leatherhead Report (paragraph 14 above).

Evidence and Facts in AgroEuropa

32.	Before considering the evidence for Customs, much of which was relevant to both appeals, it is convenient to set out the facts agreed in AgroEuropa or contained in undisputed documents and the evidence for AgroEuropa.

33.	AgroEuropa is a trader and importer of meat and meat products.

34.	On 23 October 2003 AgroEuropa declared a consignment of frozen peppered turkey under 1602 31 11 under entry 071-032615K, attracting ad valorem duty at 8.5% and duty of £3,204.84.  On 29 October a representative of AgroEuropa attended an inspection of the consignment at Norish Coldstore Facilities.  Customs took a sample for inspection and laboratory testing.  The sample was sent for testing to CCFRA.  A duplicate sample was retained by Customs and sent to their Central Filing Office, in Rayleigh, Essex, to be stored in their freezer.  

35.	The results of the testing by CCFRA were reported (A 140) under certificate number CE/REP/75739/41 (which we refer to as “041”). The report, which was addressed to Mr Smith at Tilbury and dated 27 November 2003, contained the following,

“The sample consisted of frozen, uncooked, boneless skinless turkey breast portions.  There was visible evidence of seasoning with what appeared to be white pepper, which was distributed over the breasts. 
The seasoning, however, was not over the total surface of the meat nor seasoned in depth (see attached photographs).  It was visible on the skin of the cooked product and there was a detectable taste of pepper where there was visible seasoning.  However, no taste of seasoning was detectable throughout the meat.
Due to the sensitive nature of this type of product, we have been advised not to recommend the Commodity Code by the classification team at Southend.”

The Visual Assessment sheet (A 143A) contained the following in Jayne Arnold’s writing,

“15 kg blue polythene bag containing boneless, skinless, turkey breast portions – coated in white pepper which is patchy on all of the breasts.  It is sparse in places.  Not on total surfaces.”

Megan Davies recorded a taste test, with Miss Gearey noting “slight hot aftertaste” where seasoning visible, Rachael Pither recording “no mouth burn” anywhere whether the seasoning was visible or not or in the middle/depth and Megan Davies “None” anywhere.

36.	On the Analysis Request Form (A 143B) there appeared, 

“… all breasts similar in that visible evidence of seasoning with white pepper distributed over the breasts very patchy and sparse in places on all breasts.  Not on total surface.”

There also appeared “boneless skinless turkey breast portions coated in white pepper” in Miss Pither’s writing.  Megan Davies recorded the taste test, the only tick being against “LAG” (Miss Gearey) against “seasoning”.  It was signed by Miss Gearey.

37.	A ruling was given on 12 December 2003 by Vicki Manning classifying the consignment under heading 0207.  On 5 February 2004 a post-clearance demand note was issued for £10,921.41.  AgroEuropa requested a review on 5 March.  An e-mail  from Miss Gearey to Mr Palmer on 30 March stated that the reference in the Report to visible seasoning “on the skin of the cooked product” should have referred to the surface of the product. The decision was confirmed by Mr Palmer in a review (A 281) dated 28 May 2004; at paragraph 18 Mr Palmer referred to photographs of the samples taken during his visit in March and said that they clearly confirmed CCFRA’s findings that none can be said to be seasoned over the whole surface. At paragraph 21, Mr Palmer stated “the correct test as far as taste is concerned is whether, when cooked, the seasoning is ‘clearly distinguishable by taste’ throughout the meat.”  Customs agreed to an extension of time to appeal to the Tribunal. On 6 July, before any appeal had been lodged to the Tribunal, Mr Palmer informed AgroEuropa that due to a breakdown of the freezer at Rayleigh it had been necessary to destroy samples including that of AgroEuropa.  He wrote,

“I accept that it would be extremely difficult for Customs to defend the demands for additional duty as no further, independent, examination can now take place.  It is for this reason that I have decided to overturn the C18 decisions and allow the goods to clear under commodity code 160231 11 00 as originally entered.”

38.	Meanwhile, on 16 March 2004 AgroEuropa had imported a further similar consignment via Felixstowe under entry 071-019158F declaring the code as 1602 31 11.  No sample was taken. Duty of £2,139.10 was paid.

39.	On 23 March 2004 a further 24,000 kg consignment was entered under reference 071-028568B at Felixstowe duty of £2,251.45 being declared under heading 1602.  On 31 March representatives of AgroEuropa attended an inspection at which samples were taken.  Two samples were retained by Customs, one of which was sent to CCFRA on 6 April.

40.	On 25 March 2004 another 24,000 kg consignment was entered at Felixstowe under entry 071-033536F the duty of £2,234.39 being declared under heading 1602.  Samples were taken on the same day as for entry 071-028568B, again in the presence of representatives of AgroEuropa.  Again, two samples were retained by Customs, one of which was sent to CCFRA on 6 April.

41.	The result of the testing of the sample from the consignment entered on 25 March was given by CCFRA in Report No. CE/REP/78682/008 dated 12 May.  We refer to this sample as “008”.  The sample consisted of a 15 kg blue polythene bag containing approximately 10 frozen, boneless, skinless turkey breasts. The Report (A184) contained the following,

“There was visible evidence of seasoning, with what appeared to be white pepper on the upper surface of the breasts.  There were areas where no seasoning was evident, particularly on the surfaces where the breasts were separated from each other, on the underside of the breast little pepper was evident.  Some liquid was present after defrosting and a small amount of pepper was visible in this liquid, see attached photographs.
Where seasoning was visible on the cooked product, there was a slight detectable taste however, there was no discernible taste of seasoning in the majority of the turkey meat.”

Again, the Report stated that CCFRA had been advised not to recommend the code.

42.	The Visual Assessment Sheet (A 188A) produced on the fourth day also showed the work as allocated to Jayne Arnold.  The following appeared in Miss Arnold’s writing,

“Large blue polythene pack containing approx 10 boneless, skinless turkey breasts.  Slight smell of pepper on opening.  Some areas heavily peppered but others had no pepper evident particularly on surface where breasts were separated after defrosting.  Underneath had some areas which were peppered + there was some pepper in the liquor but obviously not completely covered.
Taste test – very slight taste of pepper on cooked meat outer surface but not inside.”

On the reverse side was a table with comments by Miss Gearey, MSMD (Megan Davies) and EH (Elaine Hughes).  All recorded “none” against “seasoning not visible” and “middle not surface”.  Under “seasoning visible” Miss Gearey was recorded as noting “not after taste”, Megan Davies as “none” and Elaine Hughes as “slight pepper”.  These comments were in Jayne Arnold’s writing.

43.	The Analysis Request Form produced on the same day had identical wording to that on the Visual Assessment Sheet.  It was signed by Megan Davies and initialled by Jayne Arnold.

44.	The result of the tests on the sample from 23 March was contained in Report No. CE/REP/78682/009 also dated 12 May (A 159).  We refer to this as “009”.  This Report contained the following:

“There was visible evidence of seasoning with what appeared to be white pepper on the upper surface of the breasts.  This seasoning was sparse with large patches where no pepper was evident.  There was no pepper visible on the underside apart from one concentrated patch.
No seasoning could be tasted in the cooked product.  This product is therefore not completely coated in seasoning nor is it distinguishable by taste.”

45.	The Visual Assessment Sheet (A 163A) read as follows:

“As per 008 but pepper more sparse and larger areas which had no pepper evident.  Underneath surface hardly any pepper except one concentrated patch.
Taste test.  No pepper taste.”

The Analysis Request Form (A 163C) started with this in the writing of Megan Davies, “Large blue polythene pack containing approx 10 boneless, skinless turkey breasts. Slight smell of pepper on opening.”  There then appeared in Miss Gearey’s writing,

“Pepper in patches on the surface but quite sparse with large areas with no pepper evident.  Underside hardly any pepper apart from one concentrated patch.”

Against “Tasting” there appeared “No pepper taste at all on any area” with the words “on cooking” added by Miss Gearey after “taste”.

46.	AgroEuropa had objected to the “Queried Entry Advice” communications from Customs in respect of the two entries declared on 23 and 25 March 2004 but on 1 April 2004 consented to declare these under 0207 under protest in order to allow the goods to be released. AgroEuropa claimed a tariff quota in respect of heading 0207 under which no duty would be owing despite the change in classification. On 12 May 2004 Customs wrote that while the commodity code remained in dispute a GATT copy of the entries could not be issued.  On the same day the AgroEuropa wrote that “having had the opportunity of applying against the ‘critical quota’, those goods are not considered by us under dispute for this reason”. Notifications of Tariff Classification for the entries declared on 23 and 25 March 2004 were issued on 31 July 2004 showing classification under 0207. On 8 December 2004 Customs issued a post-clearance demand for £25,458.94 listing the entries on 23 October 2003 (see paragraph 34 above) for which the duty claimed is £12,185.31, the entry on 16 March 2004 (see paragraph 38 above) for which the duty claimed is £13,271.83 and for the two entries on 23 and 25 March 2004 against which there appeared “Quota 1923 claimed – no duty payable.”

47.	AgroEuropa required a Review.  This was carried out by Mrs Linda Chandler in a Review dated 10 March 2005 in which she confirmed the Post Clearance Demand.  She concluded that Customs could legally issue a C18 covering goods subject to a previous C18 that was cancelled following a formal review, citing Articles 221.3 and 242 of the Community Customs Code.  She also concluded that it was reasonable to raise a C18 on the 16 March 2004 entry which had not been sampled on the basis of evidence relating to the same supplier and the same product code. 

48.	AgroEuropa appealed.  The CCFRA Reports on the entries on 23 and 25 March 2004 were never seen or provided to AgroEuropa until the commencement of this appeal.

49.	Guido Balestrero, a director of AgroEuropa, confirmed a witness statement and was cross-examined.  He stated that the products were bought from Agrosuper Comercializadora De Alimentos LTDA, in Chile, a subsidiary of Sopraval SA, of Santiago. The Appellant has been the exclusive distributor of Agrosuper’s products within the EU since July 2003 but is not connected with Agrosuper.  The plant where the products were prepared is authorised to import both fresh and prepared meat into the EU.

50.	He stated that he had visited Sopraval’s production facilities on several occasions and had seen the method of seasoning. A number of individual breast portions are weighed and the aggregate weight is noted. The individual portions are placed on an application tray with a gap between each breast, each tray can contain approximately eight breasts. The line worker pours from a measuring jug the appropriate amount of pepper into a dispensing sieve to give 2.5grs of pepper per kilo.  The line worker sieves half the pepper in the sieve over the upperside of the breasts before turning them over and sieving the remaining pepper onto the underside.  The line worker then uses his gloved hands to spread the pepper over the whole surface of the breasts, and rubs the pepper into the surface of the breast, thereby ensuring that all the surfaces are evenly covered with pepper.  He stated that the pepper which is rubbed into the surface permeates the immediate surface.

51.	Mr Ballestrero said that the Appellant is importing the same products from the same manufacturer into Hamburg and Genoa under Chapter 16.  The products have been sampled regularly and have been accepted.

52.	He told Mr Thomas that he did not know what the customers did with the products; there was a wide range of customers some of whom traded the goods on, but the majority sell to food manufacturers who then process the product.  All the imports under the specification of the products in question had been processed in the same way.  The quantity of pepper used, 2.5grs per kilo, was the amount which in the Appellant’s experience gave a sufficient quantity to qualify under Chapter 16.  He accepted that the pepper was not visible over the whole surface after being rubbed into the surface and packaged.  He said that as part of the control there is a periodic taste test.

53.	He told Miss Sloane that the skin is removed before the pepper is applied.  The pepper rubbed in disappears into the fibre of the meat.

54.	A statement by Zvetan Boggetti, traffic manager of AgroEuropa, who is responsible for dealing with all issues relating to importations to the EU including the UK, was agreed.  He stated that other European Customs authorities have accepted the same uncooked peppered turkey meat under Chapter 16 since the Appellant started imports of Sopraval products in July 2003.  As examples he instanced two importations to Italy in March 2006, two importations to Germany in January 2006 and importations to Holland in December 2005 and January 2006, all of which had been accepted after inspection, the Dutch importations having been sent for laboratory analysis.  The only consignment not accepted by another European authority was a consignment to Holland in November 2005 which was under appeal; however further imports of the same product had since been tested and accepted in Holland.

55.	He stated that he did not know what had happened to AgroEuropa’s own sample of the October 2003 entry.  Its whereabouts could not be traced.

56.	He stated that it is totally impracticable for an importer to ensure that there is “complete coverage” of the uncooked meat so that it is “coated with pepper over the whole of its surface” because (a) the level of seasoning would make the product inedible and (b) there is no method to ensure that a significant depth of seasoning would remain on the surface in spite of the abrasive effect of the packaging or of the other meat in the same package.

57.	He stated that white pepper seasoning is surface seasoning so that any taste test should be of the surface.  He stated that white pepper has a less strident pepper flavour than other kinds of ground pepper, such as black pepper.

The evidence for Customs

58.	Three witnesses gave evidence for Customs. All confirmed statements and were cross-examined.  Statement by three further witnesses were agreed and read.

59.	Timothy Mark Smith is a member of the Entry Processing Unit at Tilbury; his duties included examination and sampling of imported foodstuffs subject to the Common Agricultural Policy. The Padley consignment was selected by Linda Houghton for examination on 20 February 2004. He said that selection was on the basis of national profile T030 (1/171) on Customs’ computer, which provided for scrutiny of all poultry import entered under 1602.  The Import Exam Advice was sent by fax to Padley’s agent on 20 February requiring nine packs to be produced for sampling, one of which would be sent for testing, and asking whether the importer wished to be present during the examination.  The agent, Invicta Foods Ltd, replied confirming that the importer did not wish to be present.

60.	The CAP Report (3/10) signed by him showed that he carried out an inspection at 8.45am to 9.30am on 25 February at Tilbury Cold Store, removing all the outer packaging and actually sighting the goods inspected. The turkey was removed from one of the nine packages and weighed.  Each of the packages was weighed. He then selected three of the packages of 10kg for sampling.  Each package was placed in a clear plastic bag and sealed, then placed in a further plastic bag with a copy of the CAP test note sealed and labelled as original, Duplicate CFO and Duplicate Importer.  He noted that the product used for the original and Duplicate CFO samples was not in any way handled and the cartons were not opened.  The Duplicate Importer Sample was returned to the load on the agent’s instructions.

61.	He stated in the CAP Report,

“Handling of the product was kept to a minimum, however I did observe that visually, the product did appear to have some kind of coating.”

The Duplicate CFO sample was temporarily stored in Customs’ freezer at Tilbury Cold Store and the original was sent to CCFRA via TNT same day delivery on 25 February. He ticked “yes” against the question “were you satisfied with the description based on a visual inspect?” He ticked that he was satisfied with the declared weight. The description on the CAP Report was “Frozen spiced turkey”, this being the entry declared.  The CAP Test Note (3/16) said “In accordance with National Profile TO30.”  Having received the failure report on 13 May he issued the Post Clearance Demand on 24 May 2004.

62.	Mr Smith said that the consignment was released once the CVED was stamped by the Port Health Authority and the samples were taken.

63.	He said that it was not part of his job to carry out the classification.  His only job was to carry out a visual inspection which he entered onto the Report.  He sent the sample to CCFRA to establish the correct code; they would test the product and report to Classification at Southend.  It was not part of his job to apply the naked eye test.

64.	Cross-examined, he told Miss Shaw that the same procedure was followed for both the Padley and AgroEuropa consignments.

65.	He said that he could see white pepper on the Padley sample himself.  He just did a visual inspection, not being authorised to carry out a naked eye test although he might do a naked eye test on clothing.  He was satisfied that it had a glazed appearance; it was not just raw chicken but had some kind of coating.  He was satisfied with the description peppered turkey.

66.	He said that he carried out 3 or 4 examinations per day; he assumed that this was the only CAP examination that day.  He said that the cut-off time for same day delivery by TNT was between noon and 1pm because the journey took four hours.  Asked why it was not received by CCFRA until next day, he said that he assumed that it missed the cut-off because of another examination.  He normally sent samples to Louise Gearey.

67.	Re-examined, he said that it was not part of his job to tell CCFRA what to do.  The note at paragraph 61 above was a fair assessment of what he saw on 25 February 2004.

68.	Louise Gearey’s evidence was spread over three days, starting late on 6 December 2007 and finishing on 28 January 2008.  During cross-examination by Miss Sloane in the middle of the morning of 7 December, Miss Gearey produced files which she had collected from her office overnight and which had not been listed by Customs.  At the start of her evidence she had said that the CCFRA Reports had been made from notes and that her witness statements were prepared from the Reports.  She said that there were copies of work and paperwork including a booking-in form but that all the information relevant to the analysis was contained in the Report by CCFRA.  We observe at this point that her witness statements clearly contained more material on the analysis than was contained in the Reports.

69.	The Tribunal adjourned for counsel for all parties to see the files. The booking-in forms which are headed Analysis Request Form and the Visual Assessment Sheets have been covered at paragraphs 13, 42, 43 and 45 above. Mr Thomas applied for leave either to take instructions as to the material from Miss Gearey at that point which was during her cross-examination, no representative of the Solicitor’s office being present, or alternatively to be allowed to put questions in open court at that point.  Both Appellants objected.  Miss Sloane said that the matters on which Mr Thomas wished to take instructions from Miss Gearey went to the very issues on which she was being cross-examined.  Miss Shaw supported the objection saying that Padley had serious concerns as to why the material had not been produced earlier, pointing out that on 9 December 2005 the Solicitor’s Office had written, “There are no notes taken by CCFRA or HMCE relevant to the issues raised in this appeal at the relevant time.”  

70.	We refused the application by Mr Thomas.  At the close of the hearing on 7 December, when Miss Gearey was still under a cross-examination, Mr Thomas renewed his application, stating that it was completely unacceptable for the witness to be in “purdah” for two months.  He asked for leave for someone else to take instructions from Miss Gearey.  He said that in his experience courts not infrequently relax the prohibition.  He said that any unfairness was substantially mitigated by the fact that Miss Gearey had already been cross-examined for a considerable time by Miss Sloane. 

71.	Counsel for both Appellants resisted the further application, Miss Shaw emphasising that she had yet to cross-examine Miss Gearey.

72.	We gave Mr Thomas until the following Wednesday (12 December) to provide any precedent or authority for his application in circumstances when it was resisted by the other party.  Customs subsequently withdrew the application.

73.	We refused the original application for the following brief reasons which we were asked to give.  The reliability of the analysis by Miss Gearey is a central issue in the appeals.  In spite of her evidence that all the information relevant to the analysis was in the CCFRA report, a comparison between her witness statements and the report made it clear that she must have had another source.  This should have been apparent to the Solicitor’s Office when writing the letter of 9 December 2005.  The difficulty confronting Mr Thomas was entirely of the Respondents’ own making.  We accepted the submission by counsel for the Appellants that they would be prejudiced.  No precedent was cited by Mr Thomas apart from an inquest when he was only first instructed to act for an individual at a time when that person was already giving evidence.  We regarded that as a wholly different circumstance.  We did not consider that it was proper to relax the normal practice even given the width of our powers under Rule 19(3).  The normal practice is set out at paragraph 16.16 of Hamilton on VAT & Duties Appeals, 2nd ed (2001).

74.	Miss Gearey said that she holds a higher national diploma in applied science and a BSc in applied biological sciences.  She is a Senior Technical Officer in the Department of Chemistry and Biochemistry at CCFRA where she has worked in the Food Specification & Control Group for 11 years, being the manager for this group for 9 years.  She managed the examination and analysis of formal samples submitted by Customs.  She said that CCFRA obtained a contract for testing imported goods in 1994 and had tested 36,000 samples up to February 2004, the majority being CAP (Common Agricultural Policy) products. CCFRA worked extremely closely with Customs being in contact six to eight times daily.  At the start she had attended a week’s course with Customs at Southend.

75.	She said that CAP test notes came with the samples in question, mentioning the profile from which she knew which tests were required.  CCFRA had been made aware of the issues. She knew of Additional Note 6(a) to Chapter 2 : that had informed the analysis. There was no written protocol, she was purely led by Note 6(a).  She had read two paragraphs in Mrs Evans’ statement of 4 November 2005 (see paragraph 118  below) :  those described the approach which CCFRA had taken.  

76.	Miss Gearey said that the same approach to visual examination had been followed on each of the four samples. On receipt CCFRA checks the CAP Test Note and ensures that the goods are still frozen on arrival.  Handling is kept to a minimum and the goods are placed in a freezer until CCFRA is ready for examination. We note here that much of her evidence was given in the present tense when referring to past events, presumably indicating that practice has not changed.

77.	She said that when taken out of the freezer the goods are left in a tray for 24 hours, she checks that they are defrosted when opened up and if necessary they are left to defrost further.  Disposable gloves are used.  For visual examination a flap is cut in the plastic bag and they look at whether there is a lot of liquid; if there is liquid they look at the level of liquid to see if there is anything pink. They would comment if there is an amount immersed in liquid: this was not common.  If there is pepper in the bag this is mentioned in the report. When handled, significant quantities of pepper had not rubbed off the consignments in question. She always checks to see if any seasoning is lost in water.

78.	Miss Gearey said that she carried out taste tests with two other analysts.  It was a general descriptive test to see whether they could taste any heat or pepper.  It was not an official test.  They did not do a full panel test.  They did the test because of Note 6(a).  The analysts knew that the question was whether there was seasoning on the surface or in depth, and in particular any heat or mouth burn.  They tested both where there was visible seasoning and where there was not.  She was a trained triangle tester; triangle testing was a comparative approach, whereas this was not.

79.	She said that she had not seen the Padley sample since May 2007 when Dr Kilcast came.  She would say that the level of seasoning shown in the photograph at Padley sample (2/181) was as it was when tested.  She said that where pepper could not be seen she could not taste pepper in those areas on the surface.  She did not just taste the middle of the meat.  She had not seen the AgroEuropa samples for a very long time.

80.	Cross-examined, she told Miss Sloane that all work coming in went to her first as manager with the CAP Test Note.  She always did both the naked eye and taste tests for Note 6(a) from September 2003 to early 2005 and had conducted at least 50 to 100 tests on turkey meat.  She remembered those early on because she had spoken to Clare Ashby at Customs to make sure that Customs and CCFRA were in agreement as to Note 6(a). Clare Ashby told her that complete coverage was necessary on all sides so that there were no patches where no seasoning was evident or the seasoning was very sparse; however the meat need not be invisible or obscured. If a patch was due to handling that was acceptable. Miss Gearey said that CCFRA were looking for more than three-quarters to be covered; it was subjective because there was no way of accurate measurement.  In August 2003 CCFRA were asked not to recommend a code but to give details of the extent of coverage so that Customs should make the ultimate decision. Clare Ashby considered that, if CCFRA reported that there was not full coverage, that was enough for her to make a decision; she would telephone sometimes about specific reports however no note of the call would be kept by CCFRA.  CCFRA had taken its own subjective decision, CCFRA were Customs’ advisors and did not consider it necessary to give pages and pages of text; a photograph was however sent.  She agreed with Miss Sloane that it was very possible that being a subjective test different people could reach different views.

81.	Miss Gearey told Miss Sloane that she had not agreed the proper interpretation of the taste test with Customs although it had been discussed. The test needed had been discussed in September 2003; Miss Ashby did not want a full test because CCFRA’s contract was on an item of service basis and Customs would have to pay for it.  This was the first time it had arisen.  Miss Gearey said that when CCFRA did a visual assessment she could get away with a taste test instead of a full sensory panel test. At that time Customs did not consider it necessary for CCFRA to report on a taste test; it was after September 2004 that Customs decided on a full sensory test approved by UK Accreditation Service with 6 to 8 assessors.  The taste test used in the present cases had no formal written procedure, but all those doing the tasting were trained to the ISO standard.  Miss Gearey did not agree that a full sensory panel test was more reliable: those doing the taste test knew that they were looking for pepper.

82.	She said that, at the time, for tasting they took a whole breast portion cooked in a microwave and let it cool to the ambient room temperature. She did not do the cooking and did not know how long it was cooked.  The breast would then be sliced vertically down into slices 4 to 5 millimetres thick to get a good chunk of the outer surface. It was tasted from the centre, and both from where there was visible seasoning and from where it was not visible. They tasted the surface and considered how much could be tasted when seasoning was not visible on the surface.  Each of the three persons tasting ate part of three slices.  They were tasting for any evidence of seasoning in depth and whether it could be tasted on the surface both where it could be seen and where it could not.  It was only realistic to taste a small part of the surface because there was only a limited amount which could be tasted at a time.  They all wrote down on a bit of scrap paper when they tasted and then wrote it on the visual assessment form.  A colleague Miss Pither had written “throughout the meat” in the CCFRA Report at paragraph 35 above but Miss Gearey had signed it : that referred to the surface as well as the body of the meat.  Asked further about a passage in the same CCFRA Report, Miss Gearey said that she could not remember; she did not just rely on the Report but looked at the file.  She said that CCFRA still had notebooks but these would not refer to the visual references but to salt protein.  There was a booking in form with the results of the visual test recorded on it.  She could not remember the exact details but had brought the files to the Tribunal.  It was at that point that for the first time she produced the files referred to at paragraph 68 above.

83.	Copies were produced after the lunch adjournment.  Miss Gearey told Miss Sloane that she had no personal recollection now. When preparing her witness statement she had relied on the notes and the Report. She said that she did not remember any specific details of AgroEuropa’s samples. She did remember discussions at the time of the very first sample. When it was put to her that she had mentioned skin three times in her evidence she said that she must have been muddled.  She remembered one sample with skin and some without. She said that she had probably last looked at the AgroEuropa samples in 2005; they were viewed on one other occasion at the same time as the Padley sample by the Review Officer, Mr Palmer.  It was noted on the Padley file only.

84.	She said that the four files had all been stored together. All samples were viewed by Mr Palmer at the same time. He asked for them to be taken out of the freezer. She remembered viewing AgroEuropa’s October 2003 sample with Mr Palmer.  It was not fully defrosted when he came and would not have been taken out of the bag.  She did not take notes of what he looked at, having made her own notes when making the Report. Rachael Pither who died suddenly prepared the Report on the first AgroEuropa sample which Miss Gearey signed. Miss Gearey could not explain Miss Pither’s note on the Analysis Request Form (paragraph 36 above) “coated in white pepper” saying that Miss Pither did not do visual assessments when Miss Gearey was at work.  She said that TES-AC-258 was CCFRA’s visual procedure which was typed but had not been produced in evidence.  Jayne Arnold had taken the photographs.  One turkey breast only had been cooked from each sample.  Miss Gearey said that she did not know that £36 had been invoiced for the taste analysis: she said that this was much lower than the price of £300 for panel tasting.  The ticks and crosses against the taste boxes on the Analysis Request Form were in her own writing.

85.	Miss Gearey said that the Analysis Request Form 008 (paragraph 43 above) (A 188C) on a sample arriving on 6 April 2004 including the words “some areas heavily peppered” was in Megan Davies’s writing but may have been dictated by herself.  She might have taken the information from the Visual Assessment Sheet. Miss Davies was collating information from ticks by Miss Gearey and must have assumed that two ticks on the top row meant that there was a taste on the outer surface.  Miss Davies was not an approved signatory for Reports.  The Analysis Request Form was a working document and did not go to the client.  Miss Gearey used it to collate information for the Report. Asked by Miss Sloane why the Report did not mention that some areas were “heavily peppered”, Miss Gearey said that they did not always use the same descriptions word for word.  When making the Report she looked at the text written, probably discussed it with the others involved and looked at the photograph on the computer screen.

86.	Miss Gearey was then asked about sample 009 and accepted that it was a materially different result, suggesting that no pepper could be tasted.  She said that she had tasted samples where there was no taste of pepper.  It was not scientifically viable to taste over the whole surface, only a number of different points.  She said that CCFRA did not have clear instructions as to tasting from Customs because Customs did not want taste tests.  She could not remember how many parts of the surface on one piece would have been eaten, but, having sliced along the breast, random slices which were not contiguous were selected. A random selection of 3 slices was taken by each taster.  They tasted from the middle, and from the outside both where there was seasoning and where there was not. Between tasting slices, tasters cleansed their palates with water.  She agreed that with surface seasoning the meat could never be seasoned throughout.

87.	Asked about Mr Palmer’s Review dated 28 May 2004, she said that she would have advised him and remembered talking about Allyl Isothiocyante. He had obviously asked about the reference to “the skin of the cooked product” in the November 2003 AgroEuropa Report which was a mistake. She thought that he had seen the sheets, possibly when he came to view the samples.  She could not say whether he had said that the meat must be tasted throughout.  She said that she did not take a note of answers to questions raised during a Review unless they were on an e-mail.  She said that she had no contact with Vicki Manning who gave the liability ruling following the report of 27 November 2003.

88.	Miss Gearey was asked about a CCFRA Report of 23 May 2005 which described her as “Customs Enforcement Co-ordinator”, she said that she did not know when she was so described but said that although the laboratory did other work she only did government work.  She had been away on maternity leave.

89.	She told Miss Sloane that the photograph with the October 2003 file was as that sent to Customs with the Report dated 27 November 2003; it was not Digi-Eye. The flash showed where it was shiny. Asked about the photograph with the Report of 23 May 2005 she said that it was difficult to know whether she would describe the peppering as heavy; it was difficult to tell whether there was an area where none was visible, but there seemed to her to be quite a bit of pepper (A 226); she agreed that there was heavy peppering in the next photograph.

90.	Miss Gearey said that a letter which she had sent to Karen Layton followed a query about changes in practice as to what CCFRA put in reports.  Failed CAP Reports were sent to Miss Layton at Dover by Southend.  In October 2003 Miss Gearey had derived the test from Shelley Chamberlain requiring “coated over the whole surface with pepper”.  Since then CCFRA looked for complete coverage.  A Review by Shelley Chamberlain dated 27 October 2003 was the only document Miss Gearey now had as to the test at that time; it would have been sent to her by Clare Ashby.

91.	Miss Gearey’s letter (A 214) to Karen Layton which was dated 19 August 2004 read as follows:

“Further to your query last week I have investigated the reasons behind the various changes to the reporting procedure for frozen peppered turkey samples received from HM Customs & Excise.

In early 2003 we started to receive a small number of peppered turkey samples declared as prepared meat under chapter 16 of the tariff.  These samples were examined for visual evidence of seasoning and generally reported as satisfactory. At this point in time CCFRA were looking for reasonable amounts of seasoning but not complete coverage therefore only samples with little or no evidence of pepper on the surface were reported as unsatisfactory.

At the beginning of August 2003, Rachael Pither received 5 peppered turkey samples for [Invicta Foods] as part of an appeal case being dealt with by Shelley Chamberlain. This resulted in all samples of this nature being reported with photographs, full descriptions and no classification opinion being given by us.  Therefore all samples received from August 2003 onwards were photographed and no classification opinion given.  This was at the request of HM Customs and Excise as they had decided the Classification Team at Southend-on-Sea should classify all peppered turkey.  Unfortunately I was still on maternity leave at this time and cannot find anything in writing to confirm this.

I returned to work on the 1 September 2003 and Rachael asked me to investigate peppered turkey and it was at this point we started carrying out taste testing on all the samples.  I have a copy of the letter sent to [Invicta Foods] by Shelley Chamberlain dated the 27 October 2003.  In this letter clarity is given as to what level of seasoning is viewed as acceptable and the term ‘coated with pepper over the whole surface’ is used.  Therefore since this time we have been looking for complete coverage of the meat.

I am afraid it is difficult to know exactly what happened as I was not here and Rachael is no longer here to ask.  But to summarise it looks as though the reporting procedure changed in August 2003 as a result of an appeal by Invicta Foods and the problems with imported peppered turkey being recognised by HM Customs & Excise.  I would like to highlight that we have not changed what we are doing but the format of how the work is reported  has been altered to give as much information as possible.

I hope this is of help to you and formalises our conversation from this morning.  If you need anything further please let me know.”

Shelley Chamberlain’s Review letter of 27 October  included the passage:

 “It is clear from both analysis reports none of the samples examined by CCFRA or Leatherhead were visibly coated over the whole surface with pepper.” 

That Review allowed Invicta Foods Ltd’s appeal because “it is highly likely that the pepper coating has been dislodged in the handling.”

92.	At the resumed hearing on 28 January 2008, Miss Gearey told Miss Sloane that she could not remember whether she was involved in taking the photographs with the November 2003 Report (A 143C).  She agreed that it appeared to have been taken at quite a distance; she did not know from what distance she had conducted the naked eye test.  She said that Jayne Arnold had conducted the visual assessment but that Jayne tended to call her along to have a look as well. A lot of the time Jayne would do the writing and she (Miss Gearey) would tell her or vice versa.  It was not likely that Jayne would do it on her own because with the very early samples she herself was looking at everything. Asked whether any difference between Jayne and her would be noted, Miss Gearey said that Jayne is not qualified to have any opinion, but just has to say what she can see; Jayne does not know the legal requirements as well.  Miss Gearey said that Jayne is qualified to do a visual assessment but the poultry requirement is more intricate.

93.	She said that when the CAP Test note is received an Analysis Request Form is attached, this is a working document for herself. Anything that is a requirement, general notes and all sorts of things are written on it.  There is also a computerised logging system. The Visual Assessment Sheets are used for batches of tests with space for comments so that a form might contain information about unrelated samples.  The Visual Assessment Sheets are archived separately in monthly batches.

94.	Asked why in her statement when describing sample 008 she did not mention that some areas were heavily peppered, she said, “I have no idea”.  Asked about a passage in her statement “There were large areas where pepper could not be seen” which was not in the Visual Assessment Sheet, Miss Gearey said that the Visual Assessment is not always completely definitive.  Jayne had recorded “particularly on surface where breasts were separated after defrosting”. Miss Gearey told Miss Sloane,  “They are packed in together.  There will be large surfaces where there is not any pepper.”  She did not accept that it was an embellishment in the witness statement to say that there were large areas where no seasoning was found, stating again that where breasts are separated there will be large areas where there is no pepper evidence.  She said that if there is no pepper evident, particularly where surfaces of breasts are separated after defrosting it is “patchy”; if there is completely even coverage it is not patchy.  The requirement was not necessarily even coverage but visual evidence of pepper over the whole surface.

95.	Asked whether pepper might get dislodged when breasts in contact with each other are defrosted, Miss Gearey said, “Absolutely not.”  She said that pepper does not spontaneously disappear.  There was very little pepper in the liquid; she had never seen a sample with “loads of pepper” in the bottom.  Asked whether when breasts are separated and there is no seasoning where they were touching that meant that they did not satisfy Note 6(a), Miss Gearey said that it did.

96.	Asked about a blown up photograph of sample 008 (A 188G), Miss Gearey said that it was “not very clear” whether there was peppering over the whole surface; the photograph was very blurred.  Miss Gearey said that she did not recall saying that she looked for 75 per cent coverage (see paragraph 80 above), she said that it is not possible to measure the surface area of coverage accurately.  She said, “The decision is not ours anyway.”  Asked by the Tribunal how Customs could make a decision from a photograph, Miss Gearey said, “It is not up to me is it?”  She agreed that the photograph supplied to Customs with sample “009” was marked “frozen”, however that was completely incorrect; that was all that had been supplied to Customs to take their decision.

97.	Asked about her letter of 19 August 2004 to Karen Layton, Miss Gearey said that CCFRA were not looking for so much pepper that the surface of the meat could not be seen but for reasonable amounts.  The test had never changed.  She denied that after 1 September 2003 she was looking for more than reasonable amounts of seasoning.  When Miss Sloane put it to her that the fourth paragraph of the letter of 19 August 2004 showed clearly that the test had changed she said that she absolutely disputed that the test had changed, CCFRA had always been looking for a reasonable amount of coverage rather than complete coverage so that you could not see the surface of the meat.

98.	Cross-examined by Miss Shaw, Miss Gearey said that she was aware that there was an ISO standard for sensory testing, but she had not put together a formal sensory test because at the time Customs were not prepared to pay for a proper panel test.  The turkey meat was cooked in a microwave and allowed to cool to room temperature to taste it.  Tasters took random bites from 60 odd slices, two from the surface, two from the centre etc.  They did not use booths with special lighting but rooms with white walls and surfaces.  The Visual Assessment Sheets only showed when the sheets were completed, not when the work was done.  She said that taste assessors would not really note very much.  The notes were less rigorous than ISO 6658 because they were not looking at a broad spectrum.

99.	Miss Gearey said that she would probably have shown Mr Palmer the forms on the first visit or might have sent a copy through the post.  Mr Palmer had seen them before the hearing started.  Mr Zeffman did not ever ask for copies and she was never asked to append them to her witness statements.  When she wrote her witness statements, the Reports and files were all together so obviously she could not just memorise so would look at the files.  She said that she is never going to remember every single sample exactly.  She said that the comments on the Padley Visual Assessment Form were in Megan Davies’ writing; she was qualified to do a visual assessment but did not do it routinely.  Megan would have taken it from what Jayne had written but would get sidetracked and fail to finish.  Miss Gearey said that she herself added “in patches” and “not completely covered.”  Megan Davies still worked at CCFRA but had not been asked to give evidence; she had just collated information.

100.	She told Miss Shaw that Jayne had been trained and instructed to look at all the breast portions when making her comments.  Jayne photographed one breast at random.  She had not spoken to Jayne recently about the form but would have discussed the samples at the time; she could not recall whether she discussed what Jayne had written.  Now they had digi-eye equipment and take more than one photo.

101.	Miss Gearey said that it was possible to see quite clearly on the picture with the Padley sample that there is pepper on the top surface and pepper on the underside but it was patchy.  Four different representations of the same photograph of the sample were shown to the Tribunal.  She said that the photograph is on digital file; the photograph could be stretched depending on how it is printed out, so altering the proportions.

102.	Miss Shaw asked why, if pepper could be seen in thick patches over the entire portions as the Report (3/18) said, Note 6(a) was not satisfied.  Miss Gearey replied that she had not made the decision; she just told Customs what she saw.  She said that “patches” is not the whole surface.  She said that the patches are quite thick in the photograph.  She added the word “thick” on the template from which the Report was typed.

103.	She said that she did not really agree with Shelley Chamberlain that handling dislodges the pepper. Handling was kept to an absolute minimum using gloves and just holding the corners.

104.	Miss Gearey said that the way CCFRA looked at the samples had not changed.  In early 2003 Miss Pither was looking for reasonable amounts of seasoning and generally reported the samples as satisfactory; they were only found unsatisfactory if there was little or no evidence of seasoning.  From 1 September 2003 CCFRA were just giving a description and taking photographs because they were not giving a classification.

105.	She said that CCFRA are looking for evidence of a good level of pepper with not too many areas where there is no pepper or fairly little.  CCFEA are not looking for pepper within the flaps or crevices of the meat; the meat did not have a smooth, even surface.  She said a significant patch is a large area not just like a fingerprint patch, but larger than a thumb print. A thumb print patch would not be mentioned.  CCFRA had not discussed thumb print patches with Customs at the time.

106.	  She said that she did not do the naked eye test by reference to the photograph with the Padley Report but considered it to be a pretty good reflection of what the product had looked like.

107.	The notes on the Padley Analysis Request Form as to when the samples were taken out were by her.  She did not record the dates of the first two visits by Mr Palmer and Mr Owain Thomas.  Mr Palmer’s visit was to view four samples probably before the end of September 2004 for his Review of appeal cases for certain samples.

108.	Miss Gearey said that she disagreed completely with Dr Kilcast’s evidence that handling, defrosting and refrosting would affect the surface appearance.  She said that peppering might be dislodged by separating portions once defrosted.  Jayne’s comment on sample 042 “probably due to contact with the top of another portion” was Jayne’s assumption based on nothing: she was a junior technician who had not got the knowledge to express an opinion.

109.	She said that the taste test was very very ad hoc.  There was no table on the form for the Padley test, probably because there was no space.  They always tasted in the same way assessing the middle as well as the outside tasting in the same room at around the same time.  Now the sensory department carve off two millimetres and taste the remainder using 6-8 assessors and proper tasting booths; a minimum number of four assessors has been agreed with other European Customs authorities.  The present test is more objective, using ISO standards.

110.	Re-examined, Miss Gearey told Mr Thomas that the same procedure had been followed in all the taste tests in question; she had devised the procedure; all the assessors had been trained to ISO standards and are checked annually by the Triangle panel.  CCFRA did a descriptive test as opposed to the Triangle test which involved a control panel.  

111.	She said that Rachael Pither prepared the first AgroEuropa Report but died before it came back from typing and she herself read through it and signed it.  Sometimes Miss Pither would get involved in the visual examination.

112.	She said that for the visual tests all of the breasts in the bag would be defrosted completely before being viewed.  The visual and taste tests would be carried out on the same day. She would have done the visual assessments for all four reports herself; her head of department, Brian McClean, had looked at samples.

113.	She said that Megan Davies was always junior to her.  She herself usually dictated the descriptions because other people did not like getting gloves on and handling the raw meat and as manager she had to show willing.  Sometimes Megan would do it in her presence.

114.	Mr Thomas said that Mr Palmer instructed him that he did not see the Padley sample before the visit by Mr Thomas and the legal team.  Miss Gearey said that did not accord with her recollection. Asked about an e-mail from Mr Palmer on 7 November 2005 asking her to exhibit her notes to her statement, she said that she did not have a clear memory.

115.	Miss Gearey told the Tribunal in answer to a question about the first AgroEuropa sample that when Miss Pither was alive she tended to cover more; Miss Pither was her immediate manager.  She said that when Mr Palmer came she was sure that he would have seen the paperwork.

116.	Mrs Philippa Evans, a Customs officer employed in the Southend Tariff Classification Service of Customs and International Trade Operations, wrote in a statement dated 4 November 2005 that she had 27 months experience of Tariff Classification and was Technical Team Leader of a team responsible for classifying goods within the agricultural and chemical sectors.  As part of her duties she provided advice on classification of diverse products.  Her team provided BTIs to importers and classification advice to officers.

117.	She said that they make classification decisions themselves at Southend but when they did not have facilities to do an analysis themselves took account of analyses by CCFRA, Customs’ appointed chemist.  CCFRA advised on classification when it was more clear-cut.

118.	In her statement she said that to determine the correct classification of peppered poultry meat the criteria of Note 6(a) to Chapter 2 had to be applied:  

“… The meat must first be subjected to a visual examination to determine whether it can be considered to be visibly seasoned over the whole surface. For this it is agreed that the meat must be obviously peppered over all surfaces rather than sparsely or with a patchy appearance. Unfortunately there are no fixed quantities or parameters for the amount of pepper necessary. … The strength, grain size and application method can also not be taken into account in a consideration of the surface coverage. Instead the meat is considered objectively to determine whether it can be viewed as seasoned over the whole surface. There are no set dimensions for what can be considered to be a significant patch devoid of seasoning and no minimum amount of patches to ensure that the produce does not meet Note 6(a). Instead the meat is considered as a whole to determine whether it is visually seasoned over the whole surface and one patch without seasoning, on one piece of meat, would not suffice to treat the product as unseasoned … There is no quantitative method for determining whether the meat is seasoned over the whole surface either by sizes of the areas without seasoning or by the number of those areas.”

119.	Her statement continued that if it is not felt that the whole of the surface of the meat is visibly seasoned the meat will then be subjected to sensory analysis to indicate whether seasoning can be tasted in the depth of the meat.  If this second criteria is also not met then the meat is not seasoned and is classified under 0207.  If either of the criteria are met it is classified as seasoned in 1602.

120.	She stated that the liability decision on the Padley consignment was produced by Janet Jones, an officer on the team. There were no written protocol/guidelines/instructions other than Note 6(a) with the Harmonised System Explanatory Notes (“HSENs”) and Combined Nomenclature Explanatory Notes (“CNENs”) which included the General Interpretative Rules (“GIR”). The Padley decision (see paragraph 12 above) was made in the light of those and CCFRA’s Report.  It was checked and agreed by Mrs Evans’ predecessor, Clare Ashby.

121.	Cross-examined, she told Miss Sloane that she herself did not take any of the decisions nor did CCFRA.  Because there was not a scientific test which was determinative the actual classification was made her team at Southend.  They tried to be as objective as possible.  The product had to be completely coated.  The practice had been in place since before 2004 and had been discussed by Clare Ashby and CCFRA.  It was not written down.

122.	She gave evidence as to discussions in the Tariff and Nomenclature Committee, Agricultural and Chemical Section, but told us that there was no record in the minutes which tended to be very short.

123.	She told Miss Sloane that it is very difficult to describe the extent of coverage, she did not know what test CCFRA had applied.  In conjunction with the Report the photograph was enough for the naked eye test. She understood that seasoning has to be tasted in depth.  She never instructed CCFRA to test the surfaces for taste.

124.	Cross-examined by Miss Shaw she said that she would conduct a naked eye test from the photograph at 2/181 alone. The photograph was indicative of the coverage.  She said that CCFRA “make the judgment call”, she expected them to apply the criteria in Note 6(a).  The actual decision was made by Janet Jones.  There was now a written procedure.  She accepted that there was no level playing field in respect of taste tests between the different countries in the EU.  She told Miss Shaw that Janet Jones could not remember much about the actual test on the Padley product; it was not clear where Clare Ashby had checked the ruling, she had not spoken to her.

125.	The statement of Karen Layton dated 2 December 2005 was agreed.  She is responsible for the National Failed Test Note Service at Dover to ensure that the sampling information following analysis is received by the correct Common Agricultural Policy Liaison Officer (“CAPLO”). She records all samples on a database.  She received the CCFRA Report on the Padley product on 7 April 2004; together with a coloured print of a digital photograph.  She exhibited the Report, see paragraph 11 above.  The summary read,

“One 10kg green polythene bag of frozen boneless, skinless turkey breasts were received from Tilbury HM Customs & Excise. The samples were assessed for visible seasoning and odour.  One portion was cooked and tasted to ascertain whether seasoning could be detected in the meat, a full sensory panel test was not carried out at this state …”

She exhibited the liability ruling by Janet Jones, see paragraph 12 above.  She calculated the duty due and sent a referral report to the Poultry Team at Ipswich on 14 May 2005.

126.	John Christopher Clarke, Common Agricultural Policy Liaison Officer (“CAPLO”) for Central Region East since 2001 and manager of the National Poultry Project Team since December 2003, confirmed a witness statement dated 22 November 2005.  The team was set up following concerns by Customs regarding poultry imports declared under 1602. The team receives all sample results for 1602 imports targeting products likely to be proper to 0207, identifying all identical product consignments imported within the previous 3 years where a sample is found proper to 0207 and issuing post clearance demands on identical matches. A national profile T017 had been set up in November 2002 to select consignments declared under 1602 for examination and sampling.

127.	He stated that UK concerns were reported to the Commission in 2003 and the Commission had issued a notification to Member States in November 2003 requesting them to pay close attention to certain poultry imports.  In the period October 2003 to March 2004 74 poultry consignments were examined and sampled of which 43 were found proper to 1602.

128.	He stated that on 26 September 2005 he had visited the Risk Manager for Meat and Meat Products in the Netherlands who had stated that Dutch Customs were sampling a very substantial number of poultry imports under 1602 and for turkey importations the failure rate was 14%.  On 25 and 26 October 2005 he visited the Risk Management Unit in Germany and had been told that the level of examination was very low with less than half of all consignments sent for physical control having samples forwarded to the Customs laboratory, the rest being subject to a visual examination by the examining Customs officer only.  In the period when physical checks were undertaken, no consignments declared under 1602 were considered proper to 0207.

129.	Cross-examined, Mr Clarke told Miss Shaw that in the vast majority of cases the UK imports examined did not pass.  If goods were not sampled, Customs would pick up a later importation with the same profile; each case is treated individually; judgment is made on the paperwork.

130.	He told Miss Shaw that his team set up the profile.  He said that he does have dealings with CCFRA. Apart from setting up the profile, he had no discussions regarding this case.  As far as he was aware the profile was not provided to CCFRA.  He was not involved in classification and did not provide information to CCFRA.

131.	He said that there was no suggestion of fraud and agreed that the Commission notification (see paragraph 127 above) did not recommend retrospective demands.

132.	He said that he did not have notes with him of his visits to the Netherlands and Germany; Miss Gearey was there. He accepted that there is inconsistency at operational level between the UK and Germany.  He said that the UK had a dedicated project team and a more sophisticated target system for high risk products.  He had no involvement in the parameters of the CCFRA tests. He said that German and Dutch Customs have their own laboratories. He said that profile T30 originated from concern at salted chicken.  He was aware that the EU had had to backtrack from its policy on salted chicken following a World Trade Organisation arbitration.

Submissions for Padley

133	Miss Shaw submitted that Mr Smith who was the only Customs officer who inspected the Padley sample had ticked the box on the CAP Report indicating that he was satisfied with the description based on visual inspection; the naked eye test was therefore satisfied.  Article 13 of the Community Customs Code empowered Customs to carry out all the controls they deem necessary to conform the declaration; this did not empower them to contract the controls out to a third party such as CCFRA. If contrary to her submission, Customs was entitled to contract out controls to CCFRA, there must be close co-ordination with the contractor, see Article 13.3. Here the sample had been sent unaccompanied by any instructions and no adequate instructions had been given.  In Howe & Bainbridge BV v Oberfinanzdirektion Frankfurt am Main [1982] ECR 3257 the Court said at [17] that the Member States should decide on the training to enable persons undertaking classification properly to fulfil their tasks.  This had not been done.  CCFRA had not even been authorised to decide as to the proper classification.

134.	She said that contrary to Article 69.2 of the Code Padley was not invited to attend any of the tests at CCFRA.  The checks carried out by CCFRA were unlawful and could not be relied upon for reclassification.

135.	Miss Shaw submitted that the CCFRA Report on the Padley sample 058 was insufficient to enable Jennifer Jones, who made the reclassification decision, to determine the accuracy of the declaration. She only examined the report and a photograph.  This was a wholly unsatisfactory method of verifying a declaration and could not be a lawful Customs control.

136.	Miss Shaw said that because of the loss of the duplicate sample retained by Customs it was not possible to conduct any further tests.  As a matter of procedural fairness the Padley Report should be excluded.

137.	Miss Shaw submitted that in any event the goods had been correctly declared under 1602.  She said that both heading 0207 and 1602 could be used to describe the prepared turkey meat. Note 6(a) excluded Chapter 2 by expressly classifying the goods under Chapter 16.  She said that even if Note 6(a) did not apply that did not exclude classification under Chapter 16. The description under 1602 was more specific than that under 0207 and should be preferred under Rule 3(a) of the General Rules for Interpretation (“GIR”). Alternatively if neither is considered to be more specific, GIR Rule 3(c) requires 1602 to be adopted being the later.

138.	Returning to Note 6(a) she said that there were two alternative seasoning requirements: (1) seasoning in depth and (ii) seasoning over the whole surface.  In order to qualify as sufficiently seasoned, surface seasoning must be either visible to the naked eye or clearly distinguishable by taste.

139.	The Appellant’s case was that the turkey meat was seasoned over the whole surface, being both visible to the naked eye and detectable by taste. Ms de Mello’s evidence showed that the products were in fact seasoned over the whole surface with additional manual seasoning being applied when necessary. The Leatherhead Report described the product as having “significant coverage on all surfaces.” The unamended note by Megan Davies on the Analysis Request Form “pepper could be seen coating the entire surface” should be preferred to the amended note. The CCFRA Report said that “white pepper could be seen in thick patches over the entire portions.” The additional statement that “pepper was not completely coating the breast portions” was not the correct test.  The requirement was reasonable coverage rather than complete coverage, see the statement by Phillipa Evans.  No set parameters had been set as to the extent of coverage needed.  Jayne Arnold had carried out a naked eye test in fact and the unamended note reflected her observation.  The Padley Report used the word “patches” referring to presence of pepper rather than absence.  She said that Miss Gearey’s approach to the naked eye test was unclear, confusing and at times contradictory.

140.	Miss Shaw said that when the Court of Justice held Note 6(a) to be valid in Gijs van der Kolk-Douane Expéditeur BV v Inspecteur der Invoerrechten en Accijnzen (Case C-233/88) [1990] ECR I-265 it was on the basis that there were objective techniques for taste testing and the Court instanced Standard ISO 4120 which is the triangle test.  A subjective taste test was held not acceptable in Dinter v Hamptzollamt Köln-Deutz (Case 175/82) [1983] ECR 967 at [9].  No proper taste test had been carried out.  Miss Gearey had accepted in evidence that four assessors were required for a descriptive taste test. Only three assessors had been used and there was no table or detailed record of their tasting. It appeared that some assessors were unable to taste pepper even where thick pepper was visible.

141.	Miss Shaw said that Customs had not raised an argument on the burden of proof until their amended skeleton served on 25 January 2008.  She submitted that in order to succeed it was only necessary to show that the classification decision was flawed. Once the Appellant has discharged the burden of showing that the classification decision was flawed, there was no further requirement to show the correctness of the declaration on entry.  If the Appellant was required to prove its declaration by its own sample, it should have been so informed.  It was clearly anticipated by all that the duplicate sample retained by Customs would be available, hence Mr Clarke’s letter following the freezer breakdown.  This was implicit in Article 242.3 of the Implementing Regulation which referred to “possible check analysis”; see also Article 246.1.  The Appellant had always understood that the dispute was as to the meaning of Note 6(a) rather than as to the accuracy of the Leatherhead Report; no taste test had been carried out for that Report because the naked eye test was satisfied; that sample could not now be used.  Mr Prendergast’s evidence that two samples from the same production batch passed in Germany was relevant evidence.

Submissions for AgroEuropa

142.	Miss Sloane submitted that if the Appellant showed that the classification decision was wrong either substantively or because of a material irregularity in procedure the Tribunal should quash the decision under section 16(5) of the Finance Act 1994 and has power to substitute its own decision.  In Innovators International Ltd v Customs and Excise Commissioners (1998) Decision C77 the Tribunal held that Customs had not exercised a proper judgment in respect of part of the consignment and that the decision could not stand.  There as here further classification was not possible.  She said that it could not be right that where an Appellant shows that a classification decision is completely flawed it must also show what the correct classification should be even where the sample could no longer be viewed or tested.  She said that Customs have extensive powers to verify samples but re-classification must be based on a lawful classification exercise; failing such exercise the original entry declaration must stand.

143.	She said that R v Customs and Excise Commissioners, ex parte Faroe Seafood Co Ltd (Case C-153/94) [1996] ECR I-2465 and Pascoal & Filhos Ltd v Fazenda Publica (Case C-97/95) [1997] ECR I-4209 were both origin cases where there is a specific requirement on the trader to show evidence of origin.  Gefco SA v Receiver principal des douanes (Case C-411/01) concerned outward processing relief where the trader had classified the goods incorrectly; there the trader had to show that the failure had no significant effect.

144.	Miss Sloane said that Article 199(1) of the Implementing Regulation (Reg 2454/93) goes no further than making the declarant responsible for the accuracy of the declaration.  The requirements of a certificate of origin go much further.  The power under Article 68 of the Code to verify declarations which have been accepted is not the same as requiring proof.  If there was a general obligation on the trader to prove that a declaration is correct, it would be necessary to keep evidence for up to 3 years: this would be impossible with perishable goods.  She said that Article 71 of the Code must refer to a valid verification procedure.

145.	Miss Sloane said that in Van de Kolk [1990] ECR I-265 when confirming the validity of Note 6(a) the Court said that objective techniques of sensory analysis had been developed, for example the triangle test, which had the effect that the principle of legal certainty had not been infringed.  She said that the taste test must be carried out to objective standards.

146.	She said that the officers who made the classification decisions did not have sufficient information to do so. None of them undertook the naked eye test themselves. CCFRA was not reaching a conclusion on classification and did not provide enough material in the reports for the officers to do so. The photographs could be disregarded being of poor quality. None of the officers who took the decisions or conducted the reviews had been called as witnesses. Very precisely worded and detailed reports would have been needed to enable the officers to reach a proper judgment. The words in Note 6(a) “over the whole surface” give rise to considerable difficulty. The reports did not detail the extent of the coverage. There was no evidence that any further information was sought by or given to the officers.

147.	She said that CCFRA had not been adequately instructed by Customs to enable them to carry out reliable naked eye or visual tests. CCFRA were given no written instructions on the naked eye test. Miss Gearey had said that it had been discussed with Clare Ashby and in her letter to Karen Layton of 19 August 2004 said that following a review decision by Shelley Chamberlain dated 27 October 2003 CCFRA had been looking for complete coverage of the meat. That was the only contemporary evidence of the basis of the test.  That test was very different to the description in the statement by Mrs Evans (see paragraph 118 above) with which Miss Gearey had agreed.  There were no written instructions as to the taste test because at that time Customs did not want such tests on grounds of cost.

148.	The statement by Mrs Evans was the only evidence from Customs of their interpretation of Note 6(a) at the relevant time. This nuanced test had not been applied correctly by CCFRA.  In Report 009 Miss Gearey used the term “completely coated”: this was not the test.  Miss Gearey’s witness statement was not consistent with that of Mrs Evans.  Clare Ashby’s view in March 2004 was that there must be no gaps in coverage.  

149.	Miss Sloane said that CCFRA’s records were internally inconsistent.  There was no evidence from Jayne Arnold who conducted a visual assessment as to what she understood the test to be.  On sample 008 there was no description of the extent of the areas with no visible pepper.  Jayne Arnold’s references to a smell of pepper when the bag was opened and to “heavily peppered” areas were omitted from the Report.  The visual assessment on sample 009 was comparative stating that the pepper was “more sparse” than 008 with larger areas with no pepper evident: again it was difficult to tell the proportions covered.  The report on sample 009 stated that it as “not completely coated”: this did not accord with Mrs Evans’ test.  Samples 008 and 009 were from bags of apparently similar turkey breasts but produced different results.  The Court in Van de Kolk was seeking to eliminate a lack of objectivity.

150.	She said that the irregularities were material and plainly different from those in Champion Stationery Manufacturing Co Ltd v Council of European Union (Case T-147/97) [1998] ECR II-4137 where there were technical breaches which did not affect the Applicant’s defence.  Here the flaws went to the heart of the classification decision.  Further, the loss of the duplicate sample obviously affected AgroEuropa’s defence.  In Mehibas Dordtselaan BV v EC Commission (Case T-290/97) [2000] ECR II-15 the Court held at [47] that although the contested decision was tainted by irregularities the decision would not be annulled “unless it is established that without them the procedure might have had a different outcome.”  She said that that test was satisfied in the present case.  This was not a case such as Fusion Foods International Ltd v Customs and Excise Commissioners (2003) Decision C181 where the Tribunal could direct that the duplicate sample be tested.

151.	Alternatively she submitted that, if the Tribunal concluded that there was not enough material to justify a finding that there were material irregularities, then since a naked eye test is not now possible the Tribunal could take account of the manufacturing process and the evidence that 2.5 gr per kilo was applied and the evidence that similar consignments had been accepted under Chapter 16 in Italy, Germany and Holland.

Submissions for Customs

152.	In opening his case Mr Thomas said that these appeals concerned classification rather than judicial review and the principal task of the Tribunal was to decide the question of proper classification. Additional Note 6(a) was determinative as to whether Chapter 2 or 16 applied.  He submitted that seasoning over the whole surface must be visible to the naked eye and that seasoning in depth must be clearly distinguishable both over the whole surface and throughout the inside by taste: this was simple and made sense.  Alternatively, if surface seasoning can be distinguishable by taste, this must be over the whole surface.  In respect of all the consignments on which CCFRA reported they conducted both naked eye and taste tests and all consignments failed both tests.  He said that there was nothing in the legislation to stop Customs instructing CCFRA or another external laboratory to conduct an analysis of the samples, see Receveur principal des douanes de Villepinte v Derudder & Cie SA (Case C-290/01) [2004] ECR I-2041.  The same applies for naked eye tests.

153.	He said neither Appellant had produced any witness evidence to contradict the CCFRA Reports although both had the chance to take their own samples and Padley had done so.  Either could have put in their own report or asked for tests of the duplicate samples. Unless the Tribunal themselves looked at the products, the only evidence before the Tribunal in relation to the characteristics of the products was from CCFRA. 

154.	He said that the naked eye test was carried out by Miss Gearey in accordance with that set out in Mrs Evans’ statement. All parts of the meat had been tasted including the surface and even in places where pepper was visible it could not be tasted.

155.	When closing, Mr Thomas said that the Court of Justice has emphasised the need for objectivity in classification, see for example Holz Geenen GmbH v Oberfinanzdirektion Munchen (Case C-309/98) [2000] ECR I-1975 at [14] where the importance of the HSENs as an aid is stated. Classification is at the time of importation. Unless the sub-heading so provides the manufacturing process has no effect on classification, see Weber v Milcheworke Paderborn-Rimbeck eG  (Case C-40/88) [1989] ECR 1395 at [16].

156.	He said that Article 69 of the Code provides for examination of the goods and sampling when the declarant was entitled to be present.  Detailed examination within Article 68(b) and Article 244 of the Implementing Regulation was not the same and the declarant was not entitled to be present.  He said that the acceptance of the entries by Mr Smith was not a decision as to classification. He said that there is no requirement either in the Code or in the Implementing Regulation for Customs to take and retain a third sample, this is purely a UK practice, although Article 246.1 provides for samples to be returned once all means of appeal are exhausted, unless destroyed by the analysis.

157.	Mr Thomas said that the submission that the declarations stood unless Customs could prove the Review Decisions to be correct was incorrect.  Article 199.1 of the Implementing Regulation rendered the declarant responsible for the accuracy of the information given in the entry declaration.  Article 4(17) of the Code provided that the declaration is the act whereby a person indicates a “wish” to place goods under a given procedure.  He said that the burden of proof lies with the Appellants who were responsible for the declarations to show that they were correct.  He relied on ex parte Faroe Island Seafood Co Ltd [1996] ECR I-2465 at [63]-[64] where it was decided that it was for the exporter to show proof of origin, Pascoal & Filhos Ld [1997] ECR I-4209 at [42] and GEFCO SA v Receveur principal de douanes (Case C-411/01) (2003) at [52] as showing that the burden of proof is on the declarant.

158.	Mr Thomas said that Innovators International Ltd C77 was a very different case where no sample had been taken of one type of gazebo.  The decision could only cover what it claimed to cover.  No test was carried out by Customs on the major part of the adult gazebos.  The question of burden of proof was not explicitly addressed.  In Mehibas Dordtselaan [2000] ECR II-15 the irregularities involved a denial of natural justice.  Any flaws here were very different.

159.	He said that Additional Note 6(a) was inserted by Council Regulation EEC/3400/84 following the decision in Dinter [1983] ECR 969.  The validity of Note 6(a) was confirmed in Van de Kolk [1990] ECR I-265.  The Court referred to the HSENs stating at [1] that the note at issue purported to specify what is understood by seasoned meats in the HSENs.  When stating that objective criteria of sensory analysis had recently been developed the Court in Van de Kolk did not say that any particular taste test must be used; the triangle test was not the only test.

160.	He said that here the classification was determined by GIR 1 alone.  Note 6(a) is specifically designed to demarcate what meats are proper to Chapter 2 and what are proper to Chapter 16, see the HSENs referred to in Van de Kolk.  He said that Note 6(a) is a relative note to Chapter 16 as well as Chapter 2, thus Note 1 to Chapter 16 does not have a corresponding provision.  It is not correct to describe Chapter 16 as free-standing.  If meat is seasoned within Note 6(a) it is within Chapter 16, otherwise it is in Chapter 2.  GIR 3 does not therefore arise. 

161.	As to the interpretation of Note 6(a) he said that an interpretation that the meat must either be seasoned in depth with seasoning clearly distinguishable by taste or seasoned over the whole surface of the product with seasoning visible to the naked eye had a logical result, although he accepted that on this basis the use of “either … or” twice in Note 6(a) was not a normal use of language.  Mr Thomas cited a Dutch decision by Rechtbank Haartem in 2005 entitled ABV, a decision by the Munich Fiscal Court in 2003 in Application 3 K 4999/00 and a decision by the Bundesfinanzhof  in 1990 in Application VII R 133/87.

162.	Turning to the evidence, Mr Thomas said that Miss Gearey had adopted the same approach for all four consignments.  He accepted that there was no contract as to the detail to be given in the reports to Customs and no written instructions had been given as to the tests.  He said that Note 6(a) asks a sample question; the naked eye test did not involve technical expertise and it was enough that it was approached in a reasonable manner.  Miss Gearey herself did the naked eye test.  She was clear in her mind and had adopted the approach described by Mrs Evans in her statement.  Sparse coverage was not enough.

163.	He said that Miss Gearey had not accepted that a more formal taste test would be more reliable, pointing out that a triangle test would be blind.  There was no reason to impugn the tests because there were only three analysts: they had each tasted the surface.

164.	Mr Thomas said that all of the samples had been completely defrosted for the visual test and none had been completely defrosted since.  He was instructed that Mr Palmer only saw them once.  Miss Gearey had said that the Padley sample had not changed between the test in March 2004 and Dr Kilcast seeing it in May 2007.  Dr Kilcast raised the possibility that it had changed but expressed the view that the photograph was a reasonable representation of what he saw.  Mr Thomas said that the Tribunal could still give directions for the original sample to be defrosted and placed in a white tray to recreate the original naked eye test.  It would be difficult for the Tribunal to conclude that Miss Gearey’s test was wrong without a view themselves.

165.	Mr Thomas said that it was standard practice for Customs not to call the Review Officer when there was a laboratory analysis.  Mr Palmer had not carried out a naked eye test nor had Jennifer Jones.  The photographs were only relevant to show what CCFRA or Miss Gearey had seen.  The Tribunal was not concerned with Mr Palmer or Jennifer Jones but with the evidence before it.  He said that the duplicate sample in Padley had been available until December 2006.

Conclusions

166.	It is convenient to start by considering the submissions for Padley that Mr Smith carried out a naked eye test, and that the outsourcing of the analysis of the samples to CCFRA and the conduct of tests by CCFRA without affording the Appellants the opportunity of being present was unlawful.

167.	We accept Mr Smith’s evidence that it was not his job to carry out the naked eye test on these products.  A naked eye test is a simple visual test which he would clearly have been capable of carrying out in appropriate circumstances.  However we do not consider that he could carry out a naked eye test without intending to do so.  The fact that he noted that the product “did appear to have some kind of coating” and that he was satisfied with the description on a visual inspection did not amount to a naked eye test.

168.	We accept the submission of Mr Thomas that there is nothing in the legislation to preclude Customs from instructing an external laboratory to conduct an analysis of the samples, including naked eye tests. Tests under some headings could only be carried out in a laboratory. While in normal circumstances a naked eye test of a product might be expected to be carried out by a Customs officer on the spot, the legislation does not require this. There are obvious difficulties with frozen products. We return later to the actual outsourcing arrangements in these cases.

169.	Article 69.2 of the Code provides, “The declarant shall be entitled to be present when the goods are examined and when samples are taken.”  Mr Thomas sought to distinguish between an examination within Article 69.2 and the detailed examination referred to in Article 68.2 and in Article 244 of the Implementing Regulation.  As a matter of language a detailed examination is clearly an examination.  The language of Article 69.2 does not indicate that the examination there referred to is only for the purpose of taking samples, the word “when” being repeated.  There can be no doubt that a declarant is entitled to be present when goods are examined without the need for samples in particular when a visual examination is carried out at the point of entry.  That being so it would be illogical if the declarant loses the right to be present because the naked eye test is deferred.  The references to examination in Article 70 of the Code must logically include detailed examination.  In our judgment the Appellants were entitled to be present when the CCFRA tests were carried out.  They were clearly asked whether they wished to be present during the initial examination.  There was however no suggestion that either Appellant asked to be present for the examination at CCFRA or was told that this would not be possible.  Although AgroEuropa’s request at a later stage to see the procedure was refused (see paragraph 19 above), that was after the event.  We do not consider that there was a breach of Article 69.2 so as to render the examination by CCFRA unlawful.

170.	Before turning to the interpretation of Note 6(a), we consider Miss Shaw’s submission that, regardless of Note 6(a), heading 1602 applied either under GIR 3(a) as being more specific or under Rule 3(c) as being the later.  We accept the submission of Mr Thomas that Additional Note 6(a) to Chapter 2 is also a relative Chapter note in relation to Chapter 16 within GIR 1.  “Relative” is used in the sense of relating to.  In Van de Kolk [1990] ECR I-265 the Court said at [18] that the note does not change the scope of the chapters and headings of the Nomenclature but merely specifies the criteria to be taken into account for classifying goods under a particular heading of the Tariff.  If the Note does not change the scope of Chapters 2 and 16 it must logically specify the criteria by which to decide whether uncooked seasoned meat is prepared or preserved meat within Chapter 16.

171.	Note 6(a) provides that seasoned meat is:

“Uncooked meat that has been seasoned either in depth or over the whole surface of the product with seasoning either visible to the naked eye or clearly distinguishable by taste.”

The sentence has a natural break after the word “product” with two alternatives in the first part and two alternatives in the second part.  The grammatical structure is the same in the French version which has “ou” and “ou” for each “either” and “or”.  Mr Thomas submitted that a test which involved seasoning in depth to be clearly distinguishable by taste and surface seasoning to be visible to the naked eye would be simple and made sense. If this is what was intended it is very inaptly expressed.  It would be quite illogical to match the second of the later alternatives with the first of the earlier alternatives.  It would be more logical to read both of the later alternatives with the second of the earlier alternatives.  However in our judgment as a matter of language each of the later alternatives can be matched with either of the earlier alternatives.

172.	Since neither Appellant contends that the products were seasoned in depth the relevant test here is whether the turkey was seasoned over the whole surface of the product with seasoning either visible to the naked eye or clearly distinguishable by taste.  In our judgment it will suffice if it is visible on part of the surface or is clearly distinguishable by taste where not visible.

173.	This case shows the difficulty when applying Note 6(a) in practice.  Although the tariff applies throughout the Community, the application of Note 6(a) has clearly been far from uniform and there was a substantial change in UK practice in August 2003.  Commercial imports of frozen poultry will normally be in packages with several breasts or portions in each package.  Neither the naked eye test nor the taste test could be carried out without the meat being unpacked and defrosted and the portions being separated to enable the whole surface to be viewed.  This in itself means that when tested the product is not in an identical state to that on entry.  Meat which is visibly seasoned over the whole surface on leaving the production plant and on entry may have ceased to be visibly seasoned when tested following importation.  A rigid literal application of Note 6(a) may have the result that meat seasoned with pepper or salt would seldom qualify.  We accept the force of Mr Boggetti’s observation at paragraph 56 above.  Furthermore it is clearly impractical for the entire surface of a turkey breast to be tasted.  Once cooked and sliced it will be far from easy to see whether there is or was visible seasoning on what was the surface. If the appeals had turned on the interpretation of Note 6(a), it would have been necessary to consider a reference to the Court of Justice as to the interpretation of the words “over the whole surface of the product” in relation both to visibility and to taste.

174.	We accept the evidence of Dr Kilcast, a highly qualified scientist, that the sample now held by CCFRA could not be used as a reliable measure of the original product as sampled in 2004 in visual appearance.  Although this evidence was probed by Mr Thomas in cross-examination, it was not directly challenged.  We prefer his evidence to that of Miss Gearey. It was common ground that it could not safely be tasted.  We did not see how the Tribunal could have been in a position to form a valid judgment as to whether the remaining sample was in a similar condition to that viewed in 2004.  If Customs wished to challenge the evidence of Dr Kilcast, the correct course would have been to call their own independent expert, always assuming that they could find an expert who disagreed with Dr Kilcast.  We note that even Miss Gearey did not go so far as to say that the remaining sample could reliably be used. We concluded that no useful purpose would be served by a visit to Gloucestershire for the Tribunal to view the sample.

175.	We now turn to the tests carried out by CCFRA.  We have already concluded at paragraph 168 that there is nothing in the legislation to preclude. Customs from instructing CCFRA.  In Howe & Bainbridge [1982] ECR 3257, cited by the Advocate General in Van de Kolk, the Court said that it was for Member States to designate the authorities and persons required to undertake the classification of products and to decide on their training to do this.  Although Miss Gearey attended a week’s course on classification at the start presumably 11 years ago, Customs did not exercise any oversight as to the training and method of carrying out tests in respect of Note 6(a).  According to the instructions given to Mr Thomas, Customs were apparently unaware that there was any documentation supporting the Reports and photographs sent to them by CCFRA.  No written instructions were given to CCFRA as to how the tests under Note 6(a) were to be carried out.  In spite of the importance attached by the Court in Van de Kolk in 1990 to objective techniques of sensory analysis, referring particularly to Standard ISO 4120, Customs did not want a full sensory test until after September 2004 on grounds of cost. The entire fee for each report was only £164.95 before VAT. There was no evidence that Customs were aware of the visual examination method used, TES-AC-258, which was not produced in evidence although referred to in the Reports.  

176.	In early 2003 CCFRA were looking for reasonable amounts of seasoning but not complete coverage.  CCFRA were looking for visual evidence of seasoning and reported most samples as satisfactory, only reporting those with little or no evidence of pepper on the surface as unsatisfactory.

177.	From August 2003 CCFRA were asked to provide reports with full descriptions but were told not to recommend the code.  We were told that there was no written record of this either by CCFRA or Customs: we find this scarcely credible.  The evidence was that at the relevant time Customs gave no written instructions as to how the tests were to be carried out, what was to be reported and what the photographs should show. In September 2003 CCFRA started taste testing all samples but did not do full panel tests.

178.	In late 2003 CCFRA were provided by Clare Ashby, with a copy of Shelley Chamberlain’s Review decision dated 27 October 2003 which contained a series of references to pepper coating including the words “visibly coated over the whole surface with pepper.”  The phrase “coated in white pepper” appeared on the Analysis Request Form and Visual Assessment Sheet for sample 041 in early November 2003.  The Report for sample 041 contained “the seasoning … was not over the total surface” and “no taste of seasoning was detectable throughout the meat”.  Following receipt of Shelley Chamberlain’s Review, CCFRA looked for complete coverage of the meat.  The classification decision for that sample which was checked by Clare Ashby on 12 December 2003 contained the words, “The seasoning was not over the total surface of the meat nor seasoned in depth.”  There had been discussions between Miss Gearey and Clare Ashby as to whether the coverage must obscure the meat itself, which they agreed was not necessary, and as to the extent of uncovered patches which were acceptable.  Again no notes were kept of those discussions.

179.	The Report for the Padley sample dated 30 March 2004 contained the words “pepper was not completely coating the breast portions” and in relation to taste “it was not detectable throughout the entire portion”.

180.	In from August 2003, when CCFRA were asked to give a report with photographs but without a recommendation, although there were discussions between Clare Ashby and CCFRA, no record was kept.  There were no instructions as to what records CCFRA should keep and apparently no inquiries by Customs as to what records or material CCFRA did in fact keep.  The CCFRA Report on sample 041 dated 27 November 2003 was addressed to Mr Smith at Tilbury.  He forwarded the Report to Karen Layton who in turn forwarded it to Southend, from where Vicki Manning sent the classification ruling to Karen Layton on 12 December 2003 relying on the Report by CCFRA; Vicki Manning did not carry out a naked eye test herself.

181.	Following the requirement by AgroEuropa for a review, the matter was referred to Mr Palmer as Review Officer.  Mr Palmer visited CCFRA in March 2004 when samples were taken out of the freezer and photographed; the photographs show the bag as having been taken out of the freezer but the portions as not separated.  It is apparent from his Review Decision dated 28 May, that Mr Palmer did not carry out a naked eye test himself.  As already stated his Review was out of time.

182.	The procedure following receipt of the relevant CCFRA Reports was similar with the other samples.  The officers making the classification rulings relied on the Reports with photographs and did not view the samples themselves.  The Review Officers again relied solely on the Reports and did not carry out naked eye tests themselves.

183.	There appears to have been an element of confusion as to whether the naked eye tests were being carried out by CCFRA or by Customs.  We are satisfied that they were not carried out by Customs.  We have already concluded that an officer cannot carry out the test without intending to do so.  It is clear that none of the officers did so intend.  We do not consider that it is possible to carry out a naked eye test by looking at a photograph. The photographs were in our view no more than illustrations accompanying the Reports. When asked by Miss Shaw (paragraph 96) about measurement of the area of coverage, Miss Gearey said that the decision was not hers.  Asked how a decision could be made from a photograph she said that it was not up to her.

184.	We do not consider that as a matter of law the officer making the classification decision must carry out the naked eye test, although this is desirable where possible. In our view when a statutory review is carried out, the Review Officer should carry out a naked eye test for himself wherever this is practical. The separation of the physical observation from the ruling as to the application of the code should where possible be avoided.  That separation has given rise to considerable difficulty in the present appeals.  In the case of Mr Palmer’s Reviews, the fact that he did not carry out a naked eye test is not directly material because the Reviews were outside the statutory time limit.

185.	We now turn to the examinations and Reports by CCFRA.

186.	On arrival the samples accompanied by the CAP Test Note went to Miss Gearey.  Each of the samples was allocated to Jayne Arnold, a junior technician, for visual assessment.  The samples were taken out of the freezer and left in a tray for at least 24 hours to defrost.  When defrosted the plastic bags were cut and the amount of liquid there was observed. Miss Gearey normally did this using disposable gloves.  Samples were separated and placed on white trays in good light.  It was not clear whether all samples in the bag were viewed.  Handling was kept to a minimum.  The samples being viewed had to be lifted up and turned over to see all surfaces. On each Visual Assessment Sheet observations were written by Jayne Arnold. The Analysis Request Form for 008 replicated the Visual Assessment Sheet. The visual comments on the Analysis Request Form for 041 were by Miss Gearey and Miss Pither; the Analysis Request Form for 009 was in the writing of Megan Davies and Miss Gearey and rephrased Jayne Arnold’s note to a limited extent.  The Analysis Request Form for 058 contained observations in Jayne Arnold’s writing with significant additions by Miss Gearey (see paragraph 13 above).  It is clear that the initial comments on 058 cannot have been dictated by Miss Gearey and must have reflected Jayne Arnold’s initial observations; those on 008 on the other hand may well have been dictated by Miss Gearey.

187.	Photographs were taken by Jayne Arnold from varying angles and distances.  That for 041 showed one breast taken from about the same height as the breast; it is not possible to see whether it was on a tray.  There were two photographs of 008: one showing a number of breasts together still frozen and in or on blue plastic, the other showing three or possibly more breasts on a tray, clearly taken from a higher level with clear shadow.  There were two photographs for 009: one showing a number of breasts together still frozen also on blue plastic, the other showing two breasts touching at the end and much weaker shadow suggesting poorer light and taken almost from above but at a greater distance. There was just one photograph for 058 with no shadow visible again taken almost from above. There was no consistent pattern as to light, distance, height, angle or number of breasts photographed.  We do not consider that it would have been possible for the classifying officers to form any proper view as to whether Note 6(a) was satisfied by looking at the photographs.  Miss Gearey said that she considered the photograph of 058 to be “a pretty good reflection” of what the product had looked like, she did not suggest that it would have been a proper basis for a naked eye test. Her observation to the Tribunal was inevitably qualified since she could not conceivably remember at this point of time what the breast looked like in March 2004.

188.	One of the breasts was taken at random by Jayne Arnold and cooked in a microwave oven.  It was then cut into about 60 slices usually by Miss Gearey, the slices being 4 to 5 mm thick to give a large enough portion of the surface.  After cooling, three random slices were tasted by each of three assessors, making nine slices in all. They took small bites of around 2cms from the middle and from the surface where seasoning was visible and where it was not.  They made notes on scraps of paper which were not kept; not much was noted on the scraps.  Megan Davies and Miss Gearey assessed all four samples; Rachael Pither assessed 041 and Elaine Hughes the other three.  Megan Davies drew up tables with “none” or comments such as “slight hot after taste” against each assessor for each type of bite or ticks and crosses.  There were brief taste comments on Analysis Request Forms.

189.	Apart from the 058 which was drafted by Miss Pither although signed by Miss Gearey, all Reports were drafted by Miss Gearey who wrote on a proforma which was sent for typing.  She normally drafted them on the day of the visual and taste tests.

190.	The preceding paragraphs set out the procedure adopted for all four samples except where differences are recorded.  We now turn to the individual reports.

191.	The first in point of time was 041 (see paragraphs 35 and 36 above).  If the comments on the Visual Assessment Sheet were dictated by Miss Gearey, she used different terminology in the Report which does not use the words “coated”, “patchy” or “sparse”.  While the Report stated expressly that the seasoning was not over the total surface it does not make the extent of the coverage clear: in our judgment this was not apparent from the photograph.

192.	The next sample was 058, the Padley sample (see paragraphs 11 to 13 above).  Here there were significant additions by Miss Gearey to the notes on the Analysis Request Form by Megan Davies. Jayne Arnold’s note on the Visual Assessment Sheet was clearly based on the amended note on the Analysis Request Form.  It seems to us that there is tension between the sentence, “white pepper could be seen in thick patches over the entire portion, see attached photograph” and the following sentence, “However, pepper was not completely coating the breast portions.” Again the photograph does not in our view assist.

193.	Samples 008 and 009 (see paragraphs 41 to 45 above) were analysed on the same dates, the visual assessments being in April 2004. There were material differences between the Report and the notes for 008.  The Report did not state that some areas were heavily peppered.  The words “underneath had some areas which were peppered … but obviously not completely covered” appeared in the Report as “on the underside of the breast little pepper was evident.”

194.	The correlation between Report and notes on 009 was much closer.  The notes referred to “large areas which had no pepper evident.”

195.	The use of terminology was not consistent particularly the words “patches” and “patchy”.  The Report on 058 stated “pepper could be seen in thick patches over the entire portion.”  There “patches” clearly referred to pepper which could be seen.  In the Report on 009 the words “large patches where no pepper was evident” used the word “patches” in a totally different sense.  In respect of 041 the Visual Assessment Sheet contained “pepper which is patchy on all of the breasts.  It is sparse in places”; the Analysis Report Form read “very patchy and sparse in places.”  If  “patchy” indicates an absence of pepper, it is not clear how it can be sparse at the same time.  While these observations may seem semantic, the Reports were used as the basis for classification rulings: for this clarity and precision were essential.

196.	A problem of a different type arises out of the references to “not completely coating” in the 058 Report and “not completely coated” in the 009 Report.  There is no reference to “coating” in Note 6(a) still less to being “completely coated”.  The origin of its use in CCFRA’s Reports was Shelley Chamberlain’s Review.  Miss Gearey discussed the extent of coverage needed with Clare Ashby (see paragraph 80 above) but not it appears in relation to the term “coating”.  No note was kept of those discussions.  Miss Gearey’s evidence was that she was looking for more than three-quarters to be covered.  We find that impossible to reconcile with a requirement that the meat be “completely coated”.  It is to be noted that Mr Palmer’s late Review of the Padley sample contained the following passage in relation to the Leatherhead Report, “There is no reference as to whether the meat was ‘fully coated’ with seasoning only that there were ‘significant coverage’ of flecks on all surfaces.”  The passage in the statement of Mrs Evans (see paragraph 118 above), which Miss Gearey said reflected the approach which CCFRA had taken, clearly envisaged that meat can satisfy the naked eye test although there are areas albeit limited where no seasoning is visible.

197.	In the case of any sample it was necessary for a judgment to be made as to whether or not the meat was seasoned over the whole surface with seasoning visible to the naked eye.  It is clear that the actual decision as to whether the products should be reclassified had to be taken by Customs, however the instruction to CCFRA not to make a recommendation but merely to make a Report has given rise to great difficulties in these appeals particularly in the absence of clear written instructions by Customs as to the tests to be carried out and the interpretation of Note 6(a).

198.	No doubt Miss Gearey would have been able to make a recommendation as to whether the criteria of Note 6(a) were satisfied, however she was asked not to do so and when asked by Miss Shaw (paragraph 96) about 75 per cent coverage said that the decision was not hers.  Apart from the Report on 009 where it was stated that there were large areas which had no pepper evident, we do not consider that the material in the Reports was sufficient to enable Customs to make a valid decision.

199.	The Reports as to tasting gave rise to further problems.  The Report on 041 stated “no taste of seasoning was detectable throughout the meat.”  That for 008 stated “there was no discernible taste of seasoning in the majority of the breast meat.”   That for 058 stated that pepper “was not detectable throughout the entire portion.”  Mr Palmer’s two Reviews used the phrases “throughout the meat” and “throughout the entire portion.”  This was the wrong test since the taste test does not need to be satisfied in depth but can be satisfied by surface tasting.

200.	In fact CCFRA did carry out tests on the surface both where seasoning was visible and where it was not and in the case of each sample concluded that pepper could not be tasted where it was not visible.  This fact was not however contained in any of the Reports and cannot have been known to the officers deciding on reclassification.

201.	We now turn to consider the legal basis of the post-clearance demands in question and the submission that the demands were made following irregularities amounting to unlawful controls.  Under Article 37 goods brought into the Community are from entry subject to customs supervision and may be subject to customs controls.  Under Article 4(14) customs controls include acts verifying declaration data.  The acceptance by Customs of the initial declaration gave rise to a customs debt under Article 201.2 of the Code.  Article 68 entitled Customs to examine goods and to take samples for the verification of declarations which they had accepted.  Article 71.1 provides that the results of verifying the declaration shall be used for applying the provisions governing the customs procedure, here the release for free circulation.  Article 71.2 provides,

“Where the declaration is not verified, the provisions referred to in paragraph 1 shall be applied on the basis of the particulars contained in the declaration.”

Article 78.1 gave Customs power to amend the declaration after release of the goods.  Article 232.1 imposed on Customs a specific obligation to make post-clearance recovery of unpaid customs duty.

202.	We accept the submission of Miss Sloane that Article 71 must refer to a valid verification procedurally and that if there is not a valid verification the declaration stands.  Verification may or may not confirm the declaration, see Article 247 of the Implementing Regulations.  If the verification procedure adopted is invalid, logically it is not a verification at all and Article 71.2 of the Code applies.  The Code does not enable Customs to make an arbitrary re-classification and Mr Thomas did not suggest that it does.

203.	Mr Thomas submitted at the outset that the Tribunal’s task is to determine the classification rather than judicially review the Customs decision on which the post-clearance demands were based.  He was of course correct if he was stating that the jurisdiction for judicial review is vested in the High Court. If he is correct in submitting that the Tribunal has no power to consider the validity of the verification, then Chapter II of Part I of Finance Act 1994 which was specifically enacted to comply with Article 243 of the Code providing for a two-stage appeal process has not properly implemented the obligations of the UK.  We see no reason why the right of appeal under Article 243.1 against customs decisions should exclude appeals on the basis that a decision is invalid because it does not comply properly with the Code.  In our judgment where a post-clearance demand is given following examination under Article 68, the verification procedure must be a valid verification if it is to form the basis of a demand.  To take an extreme example, if a laboratory submitted a report on which a post-clearance demand was then based, when in fact for whatever reason no examination at all had been carried out by the laboratory, it would be absurd if that demand stood unless the Appellant could establish that the declaration was correct.

204.	If there is no irregularity in the verification procedure, then of course the burden of proof is on the Appellant to show that the reclassification is incorrect.  That however is a wholly different situation from one where there is a material irregularity.  We accept the submission of Miss Sloane that ex parte Faroe Island Seafood Co Ltd [1996] ECR I-2465, Pascoal & Filhos Ltd [1997] ECR I-4209 and Gefco SA (Case C-411/01) have no relevance to these appeals.

205.	We accept the submission of Miss Shaw that if, contrary to her primary submission, Customs were entitled to contract controls out to CCFRA, then Article 13.3 comes into play.  Whether or not CCFRA are an authority, we consider that the same principle must apply. It would be absurd if “close coordination” was required if a control is performed by veterinary authorities or an NHS laboratory, but not if a control is contracted out in whole or in part to a private laboratory.

206.	No cases were cited as to Article 13.3, however Howe & Bainbridge BV  [1982] ECR 3257 which preceded the Code gives some help at [17] where it stated,

“it is for the Member States to designate the authorities and persons required to undertake the tariff classification of products and to decide their training in order to enable them properly to fulfil such tasks.”

That case involved a naked eye test.  Training of staff would clearly involve training on the interpretation of the nomenclature, what tests are to be carried out and how they are to be carried out. Coordination within Article 13.3 is not the same as training, however it clearly does involve Customs giving clear written instructions as to the interpretation of the nomenclature and as to the tests required, if only to ensure that the results of any examination can be properly related by the decision maker to the statutory test.

207.	We do not consider that a minor irregularity renders a control unlawful or a verification invalid.  In Mehibas Dordtselaan BV [2000] ECR II-15 which concerned a decision by the Commission as to whether there was a special situation justifying repayment of import duties the Court of First Instance said this at [47],

“The procedure followed by the Commission in adopting the contested decision was therefore tainted by irregularities.  However, those irregularities cannot result in the annulment of the contested decision unless it is established that without them the procedure might have had a different outcome.”

In that case the Court held that this had not been established.  A similar approach was taken in Champion Stationery Mfg Co Ltd [2000] ECR II-4137 which involved an appeal by a trader affected by an anti-dumping regulation when the Court of First Instance said at [87] that failure by the Commission to comply with the requirement to give final disclosure in writing,

“can result in the annulment of the contested regulation only if it is established that the fact affected the applicant’s defence.”

208.	We accept the submission of Miss Shaw that the CCFRA Report on the Padley sample was an insufficient basis for verification of the declaration.  The division of responsibility consequent on outsourcing the examination of the samples coupled with the instruction to CCFRA not to make a recommendation made it essential that Customs should give clear and explicit instructions to CCFRA as to how Note 6(a) was to be interpreted and what the Report should contain.  The test is difficult to interpret in a way which does not deprive it of any realistic application to commercial imports of frozen poultry.  There is a substantial difference between looking for more than three-quarters to be covered, see Miss Gearey’s evidence at paragraph 80, and a patch larger than a thumbprint, see paragraph 105.

209.	We find it impossible to know what extent of coverage Miss Gearey was seeking to describe in the Padley Report.  Janet Jones concluded that the seasoning was not visible over the entire surface.  It is clear that Miss Gearey added to the note by Megan Davies on the Analysis Request Form.  The assumption must be that their visual perception was not the same. The second and third sentences on the Visual Assessment Sheet were contradictory.

210.	The Padley sample retained by Customs was destroyed following a freezer breakdown. We have already concluded that the sample still held by CCFRA is not a reliable measure.  It is not necessary for Padley to show that if there had been no irregularity in the examination and the communication of the results to Jennifer Jones the result would have been different. We have concluded however that the outcome might have been different.  In reaching this conclusion we have regard to the evidence of Miss de Mello of inspections at the production plant, the Leatherhead report, the evidence of examination at CCFRA and the evidence that similar consignments have been accepted under 1602 by other EU member states.  While those matters are not be relevant on a naked eye test, they are relevant when considering whether the outcome might have been different but for irregularities.  Accordingly we conclude that there was no valid verification and thus no verification within Article 71.2 of the Code, that the declaration on entry therefore stands and that the post-clearance demand is quashed.

211.	The conclusions in paragraph 208 apply equally to the examinations of the AgroEuropa products.  Again it is not possible to know what extent of coverage Miss Pither was seeking to describe in the Report on 041; while it is clear that she was reporting that seasoning was not visible over the total surface, it is not apparent how extensive were the areas where seasoning was not visible.  Vicki Manning in giving the classification ruling stated that the seasoning was not over the total surface of the meat nor seasoned in depth.  

212.	We conclude that the Report was an insufficient basis for verification of the declaration. The third sample retained by Customs was destroyed around June 2004 following a freezer breakdown at a time when examination of that sample was being considered.  As with the Padley sample we consider that the outcome might have been different but for the irregularity in examination and communication of the results.  In reaching this conclusion we have regard to the evidence of Senor Balestrero that line workers rubbed pepper over the whole surface, the evidence of the examination at CCFRA and the evidence that similar products have been sampled regularly and accepted on importation into Germany and Italy.

213.	The question of invalid controls does not arise in relation to the consignment imported on 16 March 2004 because the declaration was accepted without verification and released on the duty being paid or secured.  The effect of Article 71.2 in such circumstances was not addressed in this hearing, being one of the matters held over.  In any event we do not consider that a post-clearance demand could validly be made in respect of that consignment based on invalid verifications of other consignments.

214.	No post-clearance demand was made on AgroEuropa in respect of samples 008 and 009 in respect of which tariff quota relief was available.  The Reports by CCFRA again did not make the extent of coverage clear.  Furthermore the extent of coverage was not the same.  Since the two consignments were declared under 0207 under protest, presumably under Article 65 because they were originally declared under 1602, the Notification of Tariff Classification on 31 July 2004 would not appear to have been pursuant to verification.  In any event we do not consider that there was a valid verification within Article 71.2 because of irregularities as with 058 and 041.  We do not consider that those Reports pursuant to unlawful controls could be used to justify a demand for the 16 March 2004 consignment.

215.	The result is that both appeals are allowed and the demands are quashed.  Any applications for directions for costs under Rule 29(1)(b) must be made within 30 days specifying the basis.  

216.	Summary of Conclusions

(1)	No naked eye test was carried out by Mr Smith on the Padley sample (paragraph 167);

(2)	Customs were not precluded from instructing CCFRA to carry out an analysis and tests (paragraph 168);

(3)	The Appellants were entitled under Article 69.2 to be present at the examinations by CCFRA (paragraph 168);

(4)	Since neither Appellant asked to be present there was no breach of Article 69.2 (paragraph 169);

(5)	Note 6(a) applies when determining whether seasoned meat is covered by Chapter 16 (paragraph 170);

(6)	When interpreting Note 6(a), each of the alternatives “visible to the naked eye” and “clearly distinguishable by taste” applies to each of the prior alternatives seasoned “in depth” or “over the whole surface” (paragraph 171);

(7)	It is possible to combine in the one case the visibility and taste tests (paragraph 172);

(8)	Note 6(a) is difficult to apply in practice (paragraph 173);

(9)	The Padley sample now held by CCFRA cannot be used as a reliable measure of the appearance of the original product (paragraph 174);

(10)	No written instructions were given by Customs to CCFRA as to how the tests under Note 6(a) were to be carried out; there was no evidence that Customs were aware of the visual examination method used; there were no written instructions as to the interpretation of Note 6(a) (paragraphs 175-183);

(11)	There is no requirement that the officer making the classification should carry out the naked eye test, however this is desirable; wherever practicable a review officer should carry out a naked eye test for himself; Mr Palmer’s review decisions were however out of time (paragraph 184);

(12)	The correct taste test was not applied in the decisions, however CCFRA did taste the surface although this was not reported to Customs (paragraphs 199 and 200);

(13)	Article 71 of the Code refers to a valid verification procedurally; if there is no valid verification Article 71.2 applies and the particulars declared on entry stand (paragraph 202);

(14)	The jurisdiction of the Tribunal on any appeal against a decision by Customs does extend to whether the decision is procedurally valid (paragraph 203);

(15)	Where an Appellant has established that a decision is procedurally invalid because of a material irregularity, there is no burden of proof on the Appellant to establish the correct decision (paragraph 204);

(16)	Article 13.3 requires “close co-ordination” when controls are contracted to an authority; the same principle applies on outsourcing to a private laboratory (paragraph 205);

(17)	“Close coordination” involves clear instructions as to the interpretation of the nomenclature and as to the tests required (paragraph 206);

(18)	In order to rely on an irregularity in a decision or a control on which it is based, an Appellant must show that without the irregularity the outcome might have been different (paragraph 207);

(19)	There were material irregularities in the examination of the Padley sample, in the absence of close coordination between Customs and CCFRA and in the Communication of the results to Customs (paragraphs 208 and 209);

(20)	If there had not been irregularities the outcome in respect of the Padley samples might have been different (paragraph 210);

(21)	There was no valid verification and therefore no verification with Article 71.2 so that the declaration on the Padley entry stands (paragraph 210);

(22)	There were material irregularities in the examination of the AgroEuropa samples (paragraphs 211 and 212);

(23)	The outcome in respect of sample 041 might have been different but for the irregularity, there was therefore no verification within Article 71.2 and the declaration on entry stands (paragraph 212);

(24)	No post-clearance demand could be raised in respect of the importation on 16 March 2004 based on invalid verification of other samples (paragraph 213); 

(25)	Both appeals are allowed.

THEODORE WALLACE
CHAIRMAN

RELEASED: 27 March 2008

LON/04/7053
LON/05/7046