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	United Kingdom VAT & Duties Tribunals (Excise) Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Brennan v Customs & Excise [2003] UKVAT(Excise) E00475 (13 August 2003) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2003/E00475.html Cite as: [2003] UKVAT(Excise) E00475, [2003] UKVAT(Excise) E475

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EXCISE DUTIES — Community traveller — large quantity of cigarettes purchased in Spain and brought to UK without payment of UK duty — goods seized and restoration refused — review requested but not carried out — appeal allowed by consent and review directed

MANCHESTER TRIBUNAL CENTRE

RAYMOND BRENNAN

Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE

Respondents

Tribunal: Colin Bishopp (Chairman)

Roland Presho

Sitting in public in Newcastle-upon-Tyne on 16 July 2003

The Appellant in person

Christopher Rose of counsel for the Respondents

© CROWN COPYRIGHT 2003


 


DECISION

1. This is an appeal by Raymond Brennan against the Commissioners' refusal to restore to him excise goods which they had seized on 28 September 2002. Mr Brennan sought a review of the refusal to restore the goods but the review was not carried out within the statutory time limit of 45 days, and the refusal was accordingly deemed to be upheld. He also caused the Commissioners to commence condemnation proceedings in the Magistrates Court and this fact led Christopher Rose of counsel, representing the respondents, to seek a postponement of the hearing of this appeal until after the condemnation proceedings had been concluded. A date for that hearing, of 24 September 2003, had already been set.
2. Mr Brennan opposed that request. He was unwilling to accept the delay which would be caused by a postponement of this hearing; while he recognised that if the condemnation proceedings were determined in his favour, this appeal would cease to be necessary, he did not wish to wait again for this appeal to be brought on for hearing on a second occasion, if the condemnation proceedings were determined against him.
3. We took into account not only Mr Brennan's opposition to the application, but also the fact that it was made at a late stage; the Commissioners' application is dated 9 June 2003, and was received by the Tribunal on 11 June. Not only were the Commissioners out of time in reviewing their decision not to restore, they served their statement of case late (though not by a great deal). More importantly, they plainly knew at the time their statement of case was served that condemnation proceedings were in progress yet did not make any application at that time for a direction that this appeal should be stood over until after their conclusion.
4. We decided in those circumstances to refuse the respondents' application, and to proceed to hear the appeal. Mr Rose indicated at this point that he was in some difficulty, since he was without full instructions and was not in a position to proceed to a full hearing. We granted him a short adjournment while he sought further instructions. Those instructions, as he relayed them to us, were to the effect that he was to invite us to allow the appeal and direct a further review which, in practical terms, is all we are able to do in a case of this kind. We agreed to adopt that course but on the basis that we should first hear Mr Brennan's evidence in order that we might direct, if appropriate, that the Commissioners take into account our findings of fact when reviewing the case. It should be borne in mind that we do not have the same jurisdiction as the magistrates, and it is not appropriate that we should examine the question whether the goods were properly seized when another court is shortly to determine that very issue. We have proceeded upon the hypothesis that the goods were properly seized; our doing so should not be taken as any indication that that is our view of the matter.
5. Mr Brennan's goods were taken from him at Manchester airport on 28 September 2002. He had been to Spain, and had returned with 16,140 cigarettes. He acknowledged that he had made several recent trips to Spain but explained that he had been looking for work. He was a croupier, for which work he held the necessary Gaming Board licence, but he had been out of work for 11 or 12 years. As he had been dismissed by his previous employer and had no reference he had not been able to find new work in the United Kingdom, and had decided instead to seek work in Spain. He had been living on benefits for some years, but had recently sold a motor cycle, and had used some of the proceeds of that sale to fund this trip, and his purchase of tobacco. On his earlier trips, he told us, he had bought no more than 800 cigarettes – and even then not on every trip – but he had undertaken this trip for the express purpose of buying cigarettes, and it was for that reason he had bought so many.
6. His main complaint was that his interview by the seizing officer, who had stopped him when he arrived at Manchester airport, was unfair in that the officer had been selective in the information he sought. In particular, he had concentrated on Mr Brennan's income, and had been unwilling to consider the fact that he had savings, still less their amount. The conclusion that he did not have the wherewithal to fund his trips and his purchase of cigarettes was therefore flawed. Secondly, no account had been taken of the reason for his frequent trips. Additionally, he said that he had been asked first whether he bought cigarettes on all of his previous trips, and had truthfully answered no; and, when asked whether he had bought cigarettes on some of his previous trips, had truthfully answered yes — but his replies had been distorted so as to suggest that he had at first denied buying cigarettes, only to admit subsequently that he had bought some.
7. We did not have a copy of the interview note before us nor, of course, did we have a review letter. However, we do have the brief reasons for the refusal to restore which are set out in the letter communicating that decision. They were that the quantity brought in by Mr Brennan exceeded the then guideline of 800 cigarettes per traveller by 20 times (that figure rather overstates the excess, but it will serve as an approximation); that his purchase was not financially viable; that it was not credible that he would not have bought cigarettes on his previous trips; that he had travelled to Spain six times in three months; and that he was unemployed. Those reasons are repeated, though in slightly different words, in the statement of case.
8. It is apparent that no account has been taken of Mr Brennan's savings, nor of his explanation of the frequency of his trips though it is fair to point out that there is no indication in the limited papers before us that Mr Brennan mentioned that reason at his interview, and he did not suggest in his evidence to us that he had done so. The points were, however, made in a letter written by Mr Brennan's then solicitors in which they requested the review which the Commissioners failed to carry out. They also explained in their letter that it was necessary for Mr Brennan to return from Spain after each of his trips seeking employment, in order that he could satisfy the "signing on" requirement for obtaining his United Kingdom unemployment benefit.
9. We consider that the contentions made by Mr Brennan's solicitors, and by him in his evidence, are matters which the Commissioners ought to take into account in the further review which we direct. We are conscious that Mr Rose was handicapped in cross-examining Mr Brennan by his lack of full instructions — he was able to ask very little — and that we heard no evidence from the respondents' officers. It is difficult in those circumstances for us to find that what he told us has been established to the standard the tribunal would normally require. However, our inability to find facts in the normal fashion is due to the respondents' own errors, for which Mr Brennan should not be penalised, and we direct that the respondents should not disregard what he told us, and what was advanced on his behalf, without compelling reason.
10. The review is to be concluded within six weeks from the release of this decision, by an officer who has not previously been involved in the case, and its result is to be communicated to Mr Brennan, with a copy sent to the tribunal, as soon as the review has been concluded. The Commissioners are, however, to be relieved of the obligation to undertake the review if the condemnation proceedings should in the meantime be determined in Mr Brennan's favour, since in that eventuality a review would serve no purpose.

COLIN BISHOPP

CHAIRMAN

RELEASED:

MAN/03/8049