EXCISE DUTY — Community traveller — large quantities of excise goods brought to UK Control zone — goods and car used for transport seized — restoration refused — decision deemed to be upheld since no review undertaken within time limit — seizing officer alleged to have misled traveller — whether traveller’s responses coloured by misleading information — yes — decision unreasonable — appeal allowed

MANCHESTER TRIBUNAL CENTRE

 
 	
	MICHAEL MARSTON & MICHELLE LITTLE	Appellants

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	Colin Bishopp (Chairman)
						Gillian Pratt	

Sitting in public in York on 17 June 2003 

The Appellants appeared in person
Patrizia Doherty of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

	© CROWN COPYRIGHT 2003 
DECISION

1.	In this appeal Michael Marston and Michelle Little, as she then was (she has since become Mrs Marston), challenge the Commissioners’ refusal to restore to them various excise goods and a Mitsubishi Galant car.  The goods and the car had been seized from Mr Marston on 8 September 2001, when he entered the UK control zone at Coquelles, France, intending to return to the United Kingdom through the channel tunnel.  Miss Little claimed an interest in the vehicle and they jointly sought its restoration, and Mr Marston the restoration of the goods which were refused.  The Appellants sought a review of that decision; a review was carried out by Richard Truscott, but by the time he came to undertake his review, the 45 day time limit for the undertaking of such reviews had expired and in consequence the decision not to restore was deemed to have been upheld: see Finance Act 1994, section 15(2).  Nevertheless, we considered Mr Truscott’s review and indeed heard evidence from him.  

2.	It was agreed at the hearing that the Respondents, represented by Patrizia Doherty of counsel, should go first.  We heard evidence from Mr Truscott after which Mr Marston explained the Appellants’ case, partly from the witness box.  Mrs Marston did not give evidence but did participate in the hearing and we were able to form an impression of her from what she said and from her demeanour.

3.	When he arrived at Coquelles, Mr Marston had in the car 1000 cigarettes, 50 cigarillos, 15 kilograms of hand rolling tobacco, 3 bottles of spirits, 40.5 litres of wine and 360 litres of beer.  He was stopped – so far as we can tell at random – by a Customs officer, Jason Clark.  It is not suggested that Mr Marston dissembled in any way about the quantities of goods which he was carrying.  The quantities were, however, substantial and it is not surprising that Mr Clark wished to be satisfied about Mr Marston’s purpose in bringing the goods to the country.  At that time, it was believed that any traveller in possession of more than what were then the minimum indicative limits of excise goods were required to satisfy Customs that those goods were for his or her personal use.  It has since been determined that that was not correct; the burden is on Customs to show, on the balance of probabilities, that the goods are for commercial use, in other words for resale or other disposal for value.  United Kingdom law now reflects that change of perception.  At the time of Mr Marston’s arrival at Coquelles, the minimum indicative limit for hand rolling tobacco was 1 kilogram per traveller; the limit for cigarettes was 800 and for beer 110 litres.  The first two limits have since been increased to 3 kilograms and 3200 respectively, while the limit in respect of beer is unchanged.  The remaining goods in Mr Marston’s possession were within the applicable indicative limits as they were at that time, and are now, but his tobacco and beer were both well in excess of the limits.  

4.	Mr Marston is recorded in Mr Clark’s notes of their discussion to have said that he had not brought tobacco into the UK from abroad before, and that he had not previously been stopped by Customs officers in similar circumstances (it emerged at the hearing that he had brought in very modest quantities of cigarettes, on return from holiday, but had not previously gone abroad for the purpose of buying excise goods).  He said that he had been to Adinkerke and Calais, and that he had been travelling alone although it later transpired that, while he was alone in his car, he had been following a friend, driving another car, who had been on a similar excursion before and who knew the way.  He identified the goods he had bought without difficulty, and produced receipts.  According to the notes, he claimed to be a heavy smoker consuming 4 to 5 pouches of tobacco a week, obtaining 60 to 80 cigarettes per pouch, and he expected his tobacco to last 6 to 8 months; at that claimed rate of consumption the tobacco would in fact last about twice as long.  He claimed also to smoke 20 manufactured cigarettes a day and correctly calculated that at that rate 1000 cigarettes would last him 50 days.  He expected to give some of the beer away at Christmas and thought the remainder would last about 20 weeks; he said that he consumed 6 to 8 cans of lager per day.  The wine had been bought for Miss Little.  Mr Marston said he was a self-employed plumber, and his girlfriend, as she then was, a part-time nursery nurse.  They had a modest surplus of income over expenditure each month and he had exhausted their savings on this purchase.  He said he knew that it was illegal to sell goods brought into the country in this fashion, but insisted he had no intention of doing so and that no-one had contributed to the cost.

5.	In their letter seeking restoration, the Appellants mentioned that the primary user of the car was Miss Little, that she used it not only in her employment and in transporting their children to and from school but also for charitable work which it was impossible for her to undertake without a car.  They mentioned too that they had financed their purchase of the car by a personal loan, and not by hire purchase, and were required to continue making payments to the lenders.  

6.	Had that been the only information available to us, we would have come to the conclusion that it was impossible to say the Commissioners’ refusal to restore the car and the goods was unreasonable.  The quantities of hand rolling tobacco and beer were very substantial, the claimed consumption rates were remarkably high, and in the case of the hand rolling tobacco, inconsistent with the period for which Mr Marston believed it would last.  Though it was a factor which Mr Truscott considered significant, we would ourselves attach rather less weight to the fact that Mr Marston had  expended the family savings on his purchases; we can understand how that might be thought a sensible investment, taking account of the savings against United Kingdom prices which would be achieved as the goods were consumed.

7.	However, Mr Marston told us that at the outset of his interview at Coquelles he had been told by Mr Clark that while he could bring in as much as he wished for his own consumption, the phrase meant literally that – he could not even give any away.  In fact, he said, he intended to give half of the tobacco to his father, who had carried out a good deal of work at his and Miss Little’s home, for which he had refused payment.  Mr Marston’s father was later to give evidence before us, confirming that he had carried out quite extensive work and that he had not accepted, and would not accept, payment from his son for doing so.  Mr Marston junior went on to say that Mr Clark gave him the distinct impression that as long as he told a story which invited sympathy, he would have nothing to worry about; Mr Clark merely had to conclude an interview and then obtain authority from his senior officer to allow Mr Marston on his way.  Believing that he must conceal the intended gift to his father, Mr Marston coloured his replies about his consumption of tobacco accordingly.  

8.	We bear in mind that we have not heard from Mr Clark and that he has been given no opportunity of challenging what Mr Marston told us.  Nevertheless, Mr Marston struck us as a witness of truth and we were impressed by the fact that, by comparison with other interviews of which we have seen notes, this interview appears to have been short and some what cursory.  We are prepared to accept that Mr Marston was misled both about what he might do with the goods he was bringing into the country, and about the importance of the interview, and that he did not do himself justice.  It also appeared to us, from his and his wife’s demeanour, that they were not likely to sell the goods on.  Rather, we think that Mr Marston loaded up the car without any real thought about the useful life of, in particular, the tobacco products – indeed, we formed the impression that he did not really understand that tobacco has a “shelf life”.  He made a good deal of his having being misled also by notices he had seen in commercial premises to the effect that travellers could bring back to the United Kingdom as much as they wished but, as Mr Truscott explained, the Commissioners do not have the power to prevent commercial premises, particularly those on the continent, from displaying such notices.  We are willing to accept that Mr Marston was encouraged by those notices to buy rather more that he might otherwise have done.

9.	The officer who refused to restore the goods and the car – and whose refusal, because of the failure to carry out a review in  time, is deemed to have been upheld -  was unaware of Mr Marston’s complaint about what Mr Clark had said to him at the beginning of the interview.  He would inevitably have taken the notebook record of the interview at face value.

10.	Although the complaint about Mr Clark’s comment at the beginning of the interview has been raised late in the day we are, as we have indicated, persuaded that it affected Mr Marston’s replies in a manner detrimental to his case.  We can allow the appeal only if we are satisfied that the decision under appeal (in this case, the refusal to restore the goods and car) is one which no body of Commissioners, properly directing themselves, could reasonably have reached: see section 16(4) of the Finance Act 1994.  If, by their officers’ conduct, the Commissioners induce those whom they are interviewing to give incorrect replies, it is inevitable that the material on which they base their decision will be incomplete or inaccurate, and equally inevitable that any decision based on that information will be unreasonable, because the Commissioners have taken into account the irrelevant, or have ignored the relevant.  This is not a case in which the decision would inevitably be the same if it were reached in the correct manner.  For those reasons, we concluded that the appeal must succeed.  Often, the tribunal’s direction when an appeal of this kind is allowed is that a further review should be carried out by a different officer but in this case we concluded that the most appropriate officer was Mr Truscott, because he was familiar with the case and because he had heard Mr and Mrs Marston for himself.

11.	The direction we make is therefore that the appeal is allowed, and that there is to be a further review of the refusal to restore the Appellant’s goods and their car, to be conducted by Mr Truscott.  Its outcome is to be communicated to the Appellants and the tribunal as soon as the review has been concluded, which should be not later than 31 July 2003.  We are sure that Mr Truscott will take into account our own view that Mr and Mrs Marston did not intend to sell any of the goods, despite the undeniably large quantities.

12.	We make no direction in respect of costs.

COLIN BISHOPP
CHAIRMAN
Release Date:

MAN/02/8108