EXCISE DUTIES — Excise Duties (Personal Reliefs) Order 1992 — Community travellers entering UK with large quantity if cigarettes — seizure of goods and vehicle — whether review decision following refusal to restore unreasonable 

MANCHESTER TRIBUNAL CENTRE

 	
	NEVILLE CASSIDY	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	Mr  J D Demack(Chairman)
						Mr  C B H Gill FCA

Sitting in public in  Manchester on the 22 July 2003 
The Appellant in  person
Miss K Huyton of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

	© CROWN COPYRIGHT 2003

DECISION
1.	 On 8 March 2001 Mr Neville Cassidy (“Mr Cassidy”), Mr Gary Cassidy, Mr Cassidy’s son, and their friend, Mr James Rea, visited the continent to buy excise goods.  They travelled in Mr Cassidy’s car.  On returning to the United Kingdom, under the domestic law as it then stood, the three were required by Customs officers to satisfy them that the goods they had bought were for their own use.  The goods included 1.5 kilos of hand rolling tobacco and 60,000 cigarettes, of which Mr Cassidy claimed 0.5 kilos of tobacco and 25,000 cigarettes.
2.	Having failed to satisfy the officers that the goods were for own use, the officers seized the goods and car.  All three sought restoration of their goods,  but Mr Cassidy did not seek restoration of his car.  The applications for restoration were rejected.   Messrs Cassidy thereupon asked for a decision on review, but it merely confirmed the decision not to restore.  (Mr Rea did not seek a review against the decision not to restore 15,000 cigarettes to him). Mr Cassidy and his son then appealed against the review decision.  Their appeals came before a tribunal chaired by Mr C P Bishopp on 29 January 2002.  He dismissed them (see (2002) Decision No E 00211).
3.	Mr Cassidy wrote to Customs saying that in his decision Mr Bishopp  had “insinuated that we had insufficient funds (it was mentioned 7 or 8 times)”.  With his letter he sent  a bank statement showing that he had withdrawn £2,460 from his Select account with Lloyds TSB on 15 February 2001.  On the statement, he wrote, “You will notice I only drew out enough money to purchase my cigarettes, i.e. 5 box x 25 sleeves x £19 per sleeve = £2,375.”
4.	Notwithstanding that the tribunal had already adjudicated on Mr Cassidy’s appeal against their decision on review not to restore his goods, Customs treated his letter as a request for a review for which s. 14(5) of the Finance Act 1994 provides, and acted on it.  Mr Tooke carried out the second review.  On 9 May 2002 he confirmed the decision not to restore Mr Cassidy’s goods.  Mr Cassidy then appealed again to the tribunal, and his appeal came before us on 22 July 2003.
5.	We indicated at the outset that we were not prepared to deal with his second appeal  taking all the evidence anew and, perhaps, reaching different conclusions on the facts from those reached by Mr Bishopp.  As Mr Cassidy  had already had his day in court, we determined to confine ourselves to consider the evidence provided by him subsequent to the original hearing, but not necessarily confining our conclusion to that evidence.  The evidence in question relates solely to his having had a sufficiency of funds for the purchases, and was effectively the basis on which Mr Tooke carried out his review.
6.	As we mentioned at para 3 above, Mr Cassidy supplied Customs with a bank statement.  It covered the period between 25 January 2001 and 23 February 2001 inclusive.  On the earlier of those two dates Mr Cassidy’s account had a credit balance of £5809.91; by the later date that balance had fallen to £2997.67 for, by then, Mr Cassidy had withdrawn the £2600 he claimed to have applied in payment for his 25,000 cigarettes.
7.	Mr Cassidy also sent Customs a copy of Mr Bishopp’s decision on which he noted the “insinuations” of insufficient funds he claimed Mr Bishopp had made.  The annotated decision was, of course, before Mr Tooke, and was the basis on which Mr Cassidy pursued his appeal before us.
8.	Amongst those “insinuations” was one that the cost of the goods purchased  by Mr Cassidy and his son was “vast” by comparison with their incomes (see para 5 of the decision)  That  was not a finding by Mr Bishopp; it was merely his recording of one of the reasons Customs gave in the letter refusing to restore the excise goods and car.
9.	Another “insinuation” was Mr Bishopp’s noting of Mrs Nutten’s [the reviewing officer’s] evidence that the amount they had expended on their purchases was considerable when compared with their resources (see para 7 of decision).
10.	Yet a third “insinuation” complained of by Mr Cassidy was a passage in Mr Bishopp’s decision that dealt with his own evidence  (para 10).  Having observed that in December 2000, Mr Cassidy, his son and Mr Rea travelled to the continent when Mr Cassidy bought 5000 cigarettes for himself which lasted until February 2001, Mr Bishopp recorded that “he had enough money to pay for 12 months’ supply and considered the saving he would make on UK prices made it well worth his while to undertake another journey.”  Again, that was merely the recording of evidence: it was not a finding of fact.
11.	More importantly in the context of Mr Cassidy’s present appeal are two points he raised on the contents of the penultimate paragraph of Mr Bishopp’s decision (para 26).  The first relates to a letter Mr Cassidy wrote to Customs advising of them of his intention to go abroad and purchase a year’s supply of cigarettes.  Mr Bishopp observed that Mrs Nutten was not impressed by that letter, and was “clearly influenced by the discrepancies in Mr Neville Cassidy’s declared rates of consumption and considered that the expenditure of so much money by people of  apparently limited resources was unrealistic.”  (At one stage Mr Cassidy claimed to smoke 30 to 40 cigarettes  day.  Later he increased the figure to  65 per day).  Mr Bishopp found “that his explanation of his changed rates of consumption was unconvincing”.  We infer from Mr Bishopp’s decision that he did not accept Mr Cassidy’s claimed higher rate of consumption.    As we did not take evidence on the point from Mr Cassidy, we follow Mr Bishopp’s finding.
12.	Mr Cassidy’s second point on para 26 of the decision relates to a statement by Mr Bishopp that he was “not satisfied that either of the appellants could realistically have funded such large purchases of cigarettes for their own consumption.”    Having found that Mr Cassidy had the resources to pay for his own goods, on this point we differ slightly from Mr Bishopp. But we express ourselves satisfied that Mr Gary Cassidy could not have funded such a large purchase of cigarettes (20,000) for his own consumption.
13.	The more we heard from Mr Cassidy, the less we were satisfied that the cigarettes he imported were for his own use.  As Mr Bishopp pointed out in his decision  (see para 26), we can allow the appeal only if we are satisfied that Mr Tooke could not reasonably have come to the conclusion he reached.  We are not persuaded that his decision is one he could not have reached, and it follows that we dismiss the appeal.

DAVID DEMACK
CHAIRMAN
RELEASE DATE:
MAN/01/8136