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You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Smith v Customs and Excise [2004] UKVAT(Excise) E00618 (21 February 2004) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00618.html Cite as: [2004] UKVAT(Excise) E618, [2004] UKVAT(Excise) E00618

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Smith v Customs and Excise [2004] UKVAT(Excise) E00618 (21 February 2004)

E00618

EXCISE DUTY - appeal against decision to refuse to restore excise goods and vehicle - whether the excise goods were held for personal use - no - or for commercial purposes - yes - appeal dismissed - Council Directive (EEC) No 92/12 Arts 8 and 9; FA 1994 s16(4; The Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002 SI 2002 No. 2692 Art 4

LONDON TRIBUNAL CENTRE

NORMAN DAVID SMITH Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: DR NUALA BRICE (Chairman)

MR K C MANTERFIELD FCA

Sitting in public in London on 21 November 2003

James Fletcher of Counsel, instructed by Messrs Debidins Solicitors, for the Appellant

Sarabjit Singh of Counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004

DECISION

The appeal

1. Mr Norman David Smith (the Appellant) appeals against a review decision of Customs and Excise dated 20 January 2003 confirming an original decision to refuse to restore a vehicle L662 UGC and excise goods seized from the Appellant on 27 June 2001.

The legislation relating to the issues in the appeal

2. Section 152(b) of the Customs and Excise Management Act 1979 provides:

"The Commissioners may, as they see fit- …

(b) restore, subject to such conditions (if any) as they think proper, any thing forfeited or seized under [the customs and excise] Acts … ."

3. Section 16 of the Finance Act 1994 (the 1994 Act) provides that an appeal shall lie to the Tribunal against a decision on review under section 15. Section 15 provides for the review of decisions which come within section 14. Section 14(1)(d) includes any decision specified in Schedule 5. Paragraph 2(1)(r) of Schedule 5 specifies any decision under section 152(b) "as to whether or not anything forfeited or seized under the customs and excise Acts is to be restored to any person or as to the conditions subject to which any such thing is so restored."
4. Thus, although section 152(b) gives Customs and Excise a discretion as to whether or not to restore seized vehicles or goods, sections 14 to 16 of the Finance Act 1994 give a right of appeal to the Tribunal against a refusal to restore or the conditions of restoration. However, section 16 limits the jurisdiction of the Tribunal in respect of ancillary matters. Section 16(8) defines ancillary matters as those specified in Schedule 5. As a refusal to restore and the conditions of restoration are specified in Schedule 5 they are, therefore, ancillary matters. The relevant parts of section 16(4) provide:

"16(4) In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of an appeal Tribunal on an appeal under this section shall be confined to a power, where the Tribunal are satisfied that the Commissioners or other person making that decision could not reasonably have arrived at it, to do one or more of the following, that is to say:

(a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the Tribunal may direct;

(b) to require the Commissioners to conduct, in accordance with the directions of the Tribunal, a further review of the original decision, and

(c) in the case of a decision which has already been acted on or taken effect and cannot be remedied by a further review to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in the future."

The issues

5. Customs and Excise refused to restore the vehicle and the excise goods because they were of the view that the excise goods had been held for commercial purposes with the intention of making a profit. The Appellant argued that the excise goods carried in the vehicle had been held by him for his personal use and so the refusal to restore the vehicle and goods was unreasonable.
6. Thus the issues for determination in the appeal were:

(1) whether the excise goods were held for personal use;

(2) whether, in the light of the conclusion on the first issue, the Tribunal was satisfied that the person making the decision not to restore the vehicle and goods could not reasonably have arrived at that decision within the meaning of section 16(4); and, if so

(3) what action the Tribunal should take under section 16(4).

The evidence

7. Oral evidence was given by the Appellant on his own behalf. We did not find the Appellant to be a reliable witness; in his oral evidence he admitted that a number of statements in his witness statement were untrue. Oral evidence was also given on behalf of the Appellant by Mrs Maureen June Smith, his wife. We found Mrs Smith to be a reliable witness but much of her evidence consisted of what she had been told by her husband as she was not present at the seizure of the car and the goods. A witness statement by Mr Raymond Thomas George Hardiman, containing evidence on behalf of the Appellant was also produced. However, in deciding what weight to give to this evidence we bear in mind that Mr Hardiman was not available to be questioned at the hearing. The Appellant also produced a testimonial from Mr W S Turrell JP.
8. A bundle of documents was produced by Customs and Excise. Oral evidence was given on behalf of Customs and Excise by Ms Helen Belinda Perkins (the reviewing officer who carried out the review of 20 January 2003) and Mr Mark Thomas Stapleton (the seizing officer). Witness statements by Mr Gerry Dolan, Mr David Harris, Mr David Leslie Luckhurst (two statements), Mr Nicholas John Tigwell and Mr Leslie Smith, all Officers of HM Customs and Excise, were not objected to by the Appellant and so were read at the hearing as evidence of the facts stated in them under Rule 21(3).

The facts

9. From the evidence before us we find the following facts.
10. The Appellant retired in August 1988 after having been employed for thirty-three years with the same company. At the time of the seizure he was the owner of a Mercedes car with registration number L662 UGC (the Mercedes). He bought it in 1998 for the sum of £15,400.
11. The Appellant made frequent journeys to France sometimes on the shuttle and sometimes on the ferry. He always travelled in the Mercedes. He admitted in evidence that he had made twelve or thirteen journeys in six months. Customs and Excise produced records which showed that he went on 28 July 2000; 17 October 2000; 8 November 2000; 17 November 2000; 3 January 2001; 22 January 2001; 19 February 2001; 30 March 2001; 5 April 2001; 25 April 2001; 30 May 2001; 6 June 2001; 20 June 2001 and 27 June 2001.
12. On 27 June 2001 the Appellant and Mr Hardiman went in the Mercedes on the shuttle to Belgium. They had a meal and did some shopping. They purchased soap powder, fabric softener, wines, hand rolling tobacco and cigarettes. About midday they went to Calais and purchased some more wines.
13. At Coquelles the Mercedes was stopped by Mr Stapleton who asked questions of the Appellant and Mr Hardiman. Mr Stapleton recorded his questions and the answers in his notebook. He asked the Appellant how many cigarettes he had bought that day and the Appellant replied that he had bought ten cartons of cigarettes. (Each carton contains two hundred cigarettes and so ten cartons contain 2,000.) Mr Hardiman said that he had bought two hundred cigarettes. Mr Stapleton asked the Appellant when was the last time he had travelled to France and the Appellant replied "last month". Mr Stapleton asked the Appellant to open the boot of the car and Mr Stapleton then found 4,000 cigarettes. Mr Stapleton then asked the Appellant how much hand rolling tobacco he had purchased that day and the Appellant replied 60 pouches (3 kilograms). Mr Stapleton then found 100 pouches (five kilograms) in a light green holdall and a white plastic bag. Mr Stapleton then read a statement to the Appellant and Mr Hardiman which statement said that they were required to satisfy Customs and Excise that the excise goods had not been imported for commercial purposes. Both the Appellant and Mr Hardiman chose to stay for interview.
14. Just then Mr Stapleton was told that his colleagues had found some more hand rolling tobacco concealed in wine boxes. Mr Stapleton asked the Appellant if he had put the tobacco there and the Appellant agreed that he had put a further 100 pouches (five kilograms) in the wine boxes. The interviews were then terminated and Mr Stapleton formally seized the Mercedes and the excise goods. The Appellant signed Mr Stapleton's notebook. Altogether the excise goods found were: 4,000 cigarettes, 11 kilograms of hand rolling tobacco, 50 cigarillos, 13.5 litres of spirits, 116.25 litres of wine and 48 litres of beer.
15. On 18 July 2001 the Appellant asked Customs and Excise to restore the car and goods. This request was considered by Mr Tigwell who refused restoration and notified his decision by letter dated 19 July 2001. On 3 August 2001 the Appellant asked for a review of that decision. This was carried out by Mr Harris who, on 17 January 2002, confirmed the original decision of 19 July 2001.
16. On 25 September 2002 the Tribunal directed a further review which was given on 20 January 2003 by Ms Helen Belinda Perkins and that is the review decision against which the Appellant appeals.
17. In her review Ms Perkins considered all the relevant documents including all correspondence and the notebook interview She referred to the policy for the restoration of goods which was that, in general, seized goods would not be restored but each case was considered on its own facts. Restoration would not be directed if there were any evidence of previous smuggling, or that the person knew what they were doing was wrong, or that the person was paid to make the journey, or of large quantities of goods which might damage legitimate trade, or that the goods were for a commercial purpose. As far as vehicles were concerned the policy was not to restore a vehicle used to import excise goods for commercial purposes but restoration would be considered if the goods were to be supplied to others at cost and not for profit. Bearing in mind: that the Appellant had mis-declared the quantity of imported excise goods; that some of the hand rolling tobacco was concealed in wine boxes; that the Appellant did not know the destination of three kilograms of the hand rolling tobacco; that frequent journeys had been made; that the revenue involved in the tobacco products alone was £1,600; and that the total revenue evaded was about £3,500; Ms Perkins confirmed the decision not to restore the vehicle or goods. The decision letter did not mention the burden of proof.
18. Mrs Smith has a disabled sister. When the Mercedes was seized a friend lent a car free to Mr Smith because the friend was ill and could not drive. Mrs Smith had a car but that was used by her son for his work. Mrs Smith's sister had invalid transport arranged but it was not very reliable. However, by the time of the review conducted by Ms Perkins, Mr Smith had purchased another Mercedes car.
19. On 14 November 2001 the Appellant was informed by the Driver and Vehicle Licensing Agency that someone else had applied to be recorded as keeper of the Mercedes which had been seized.

Reasons for Decision

20. Before considering the arguments of the parties we outline the wider legislative framework as this assists in understanding the issue in the appeal.

The wider legislative framework

21. Article 99 of the Treaty of Rome (now Article 93 EC) provides that the Council of Ministers of the European Community should adopt provisions for the harmonisation of legislation concerning excise duties. The main excise duty directive was adopted on 25 February 1992 and is Council Directive (EEC) No. 92/12 on "the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products". The directive applies to mineral oils, alcohol and tobacco. The principles are set out in the recitals to the Directive and the sixth and seventh recitals provide:

"Whereas in the case of products subject to excise duty acquired by private individuals for their own use and transported by them, the duty must be charged in the country where they were acquired;

Whereas to establish that products subject to excise duty are not held for private but for commercial purposes, Member States must take account of a number of criteria."

22. Article 7 of the directive provides that, where excise goods are released for consumption in one member state but held for commercial purposes in another, then excise duty is chargeable in the member state in which the goods are held. Article 8 provides that, as regards products acquired by private individuals for their own use and transported by them, excise duty is charged in the member state in which they are acquired. Article 9 provides that, without prejudice to Articles 6, 7 and 8, excise duty is chargeable where products for consumption in one member state are held for commercial purposes in another member state; duty is due in the member state in which the products are held and the holder of the products is chargeable with the duty.
23. Thus the scheme of the directive is that where excise goods are acquired by private individuals for their own use and transported by them excise duty is charged in the member state in which they are acquired. If any excise goods are held for commercial purposes in another member state then duty is due in that state from the holder of the goods.
24. Article 9.2 of the directive provides that, in order to establish whether goods transported by private individuals are intended for commercial purposes, member states must take account of certain criteria including: the commercial status of the holder of the products; his reasons for holding them; the place where the products are located; the mode of transport used; any documents relating to the products; the nature of the products; and the quantity of the products. As far as quantity is concerned, member states may lay down guide levels solely as a form of evidence. The guide levels may not be lower than 800 cigarettes, 400 cigarillos, 200 cigars and 1 kilogram of smoking tobacco.
25. The provisions of the directive were originally implemented in the United Kingdom by The Excise Duties (Personal Reliefs) Order 1992 SI 1992 No. 3155 (the 1992 Order) which was in force at the date of the seizure. The limits for tobacco products mentioned in that Order were 800 cigarettes, 400 cigarillos, 200 cigars and 1 kilogram of smoking tobacco.
26. Since 1 December 2002 the provisions of the directive have been implemented by The Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002 SI 2002 No. 2692 (the 2002 Regulations). Article 4 applies to tobacco products and provides that, in the case of tobacco products acquired by a person in another member state for his own use and transported by him to the United Kingdom, the excise duty point is the time when those products are held or used for a commercial purpose by any person. "Own use" is defined as including a personal gift. However, Article 4 goes on to provide that, if the tobacco products in question are transferred to another person for money or money's worth (including any reimbursement of expenses incurred in connection with obtaining them) or the person holding them intends to make such a transfer, the products are to be regarded as being held for a commercial purpose. Finally, Article 4 provides that, in determining whether tobacco products are held or used for a commercial purpose, regard shall be taken of: the person's reasons for having possession or control of those products; whether or not that person is a revenue trader; the person's conduct, including his intended use of the products or any refusal to disclose his intended use of the products; the location of the products; the mode of transport used to convey the products; any document or other information relating to the products; the nature of the products including the nature and condition of any package or container; whether the person personally financed the purchase of the products; any other relevant circumstances; and the quantity of the products and, in particular, whether the quantity exceeds 3,200 cigarettes; 400 cigarillos; 200 cigars; and three kilograms of any other tobacco products. Similar provisions apply to alcoholic products (spirits, wine and beer) where the quantities are 10 litres of spirits, 90 litres of wine and 110 litres of beer.
27. Thus both the directive and the 2002 Regulations provide that, where excise goods are held for commercial purposes, then excise duty is due in the member state in which the goods are held. At first sight, therefore, it would appear that a conclusion that goods are held for commercial purposes would result in a demand for the tax due. However, the provisions relating to administration, collection and enforcement of excise duty are left to member states and in the United Kingdom they are contained in the Customs and Excise Management Act 1979 (the 1979 Act). There are also many regulations made under the provisions of that Act.
28. Section 49 of the 1979 Act provides that goods which are imported without payment of duty are liable to forfeiture. Section 124 provides that, where imported goods have been relieved from duty on importation and any condition connected with the relief has not been complied with, the goods shall become liable to forfeiture. Section 141(1)(a) provides that, where a thing has become liable to forfeiture, then any vehicle used for the carriage of that thing is also liable to forfeiture. Section 139(1) provides that anything liable to forfeiture may be seized by a Customs Officer.
29. Paragraph 1 of Schedule 3 of the 1979 Act provides that Customs and Excise shall give notice of seizure to any person who, to their knowledge, was at the time of the seizure the owner or one of the owners. Paragraph 3 provides that, if a person claims that anything seized as liable to forfeiture is not so liable, he must give notice of his claim in writing to Customs and Excise within one month of the date of the notice of seizure or of the seizure. Paragraph 5 provides that, if a notice has not been given after that month, then the thing is deemed to be condemned as forfeit. Paragraph 6 provides that, if a notice has been given within that month, then Customs and Excise must take proceedings for the condemnation of the thing by the magistrates' court. If the court finds that the thing was liable to forfeiture then the court shall condemn it as forfeit. Paragraph 11 provides that either party may appeal against the decision of the magistrates' court to the Crown Court.
30. These legislative provisions make it clear that all matters concerned with forfeiture and seizure are not matters for the Tribunal but for the magistrates' court or the Crown Court.
31. As mentioned above, section 152(b) of the 1979 Act provides that Customs and Excise may, as they see fit, restore, subject to such conditions (if any) as they think proper, anything forfeited or seized and sections 14 to 16 of the 1994 Act provides for appeals to the Tribunal with respect to decisions about restoration or the conditions of restoration. Thus, although there is no appeal to the Tribunal against either forfeiture or seizure, there is an appeal to the Tribunal against a refusal to restore a vehicle or excise goods or the conditions of restoration.
32. With that wider legislative framework in mind we turn to consider the issues in the appeal.

Issue 1 - Were the excise goods for personal use?

33. The first issue is whether the excise goods were held for personal use.
34. For the Appellant Mr Fletcher argued that the burden of proof was on Customs and Excise to show that the excise goods were not for the personal use of the Appellant and he cited R v Customs and Excise Commissioners v Hoverspeed Limited [2002] EWHC 1630 (Admin) and [2002] EWCA Civ 1804. For Customs and Excise Mr Singh argued that the excise goods were held for commercial purposes. The Appellant was not a credible witness and his evidence could not be believed. He had mis-stated the amount of goods imported and had concealed some of the goods.
35. In Hoverspeed the Divisional Court decided that the requirement under the 1992 Order that the Appellant had to prove that excise goods over the stated limits were not held for commercial purposes was incompatible with the directive and that it was for Customs and Excise to show that the importation was for commercial purposes. The 2002 Regulations do not mention the burden of proof which therefore remains as decided in Hoverspeed. Accordingly we agree with Mr Fletcher that, in this appeal, it is for Customs and Excise to show that the excise goods were held for commercial use.
36. In deciding that question we consider the disputed evidence.
37. The Appellant claimed that he had misunderstood some of the questions asked by Mr Stapleton. He initially claimed that the question "How many cigarettes have you bought today?" was "How many cigarettes have you purchased for yourselves?" The evidence of Mr Stapleton was that he asked the first question and at the hearing the Appellant accepted that the first form of the question was correct and we so find.
38. The Appellant also claimed that the question "When was the last time you travelled to France" meant "When was the last time you were here (in the terminal)". Mr Stapleton gave evidence that he asked the first question and that was the question recorded in his notebook which had been signed by the Appellant. We prefer the evidence of Mr Stapleton and find that the question asked was "When was the last time you travelled to France". We have already found that the Appellant's previous visit was on 20 June 2001 and so the Appellant's answer of "last month" was not correct.
39. The Appellant initially claimed that he tried at least twice to hand his purchase invoices to Mr Stapleton but at the hearing he accepted that he had not attempted to hand them over. Mr Stapleton gave evidence that there was no mention of receipts and, if there had been, he would have recorded it in his notebook. Again we prefer the evidence of Mr Stapleton and find that the invoices were not mentioned to Mr Stapleton.
40. Initially the Appellant claimed that he left the receipts and other documents on the floor with the goods after they had been seized. Later he accepted that he did not leave the invoices on the floor. We find that the invoices were not left on the floor.
41. Initially the Appellant claimed that the commerciality statement (that the travellers were required to satisfy Customs and Excise that the excise goods had not been imported for commercial purposes) was not read out to him but at the hearing he accepted that this was wrong. The evidence of Mr Stapleton, which we prefer, was that the statement was read. We have already found as a fact that it was read.
42. The Appellant accepted that he had claimed to bring in 2,000 cigarettes when in fact he had brought in 4,000. He also accepted that he had claimed to bring in 60 pouches (3 kilograms) of hand rolling tobacco when in fact he had brought in 220 pouches (11 kilograms). He accepted that 100 pouches (five kilograms) had been in wine boxes but claimed that they were not concealed but were for delivering to his sons on the way home and, because they were for gifts, there was no reason to conceal them. When it was put to him at the hearing that he was claiming that there were five kilograms for his sons and three for himself that still left three kilograms unaccounted for he replied that they were "for the sons later on when they run out". No mention of this had been made at any earlier stage and we do not find this explanation convincing. When asked why he had not declared the total amounts of the excise goods the Appellant said that there was no reason; he just forgot and he was going to give them to his two sons and their partners. Again, we do not find this explanation convincing. We therefore find that the Appellant mis-stated the amount of cigarettes and hand rolling tobacco which he held.
43. The Appellant initially claimed that he had not seen Mr Hardiman since the Mercedes was seized. Then he said that he had spoken on the telephone to Mr Hardiman a month after the seizure. Then he accepted that Mr Hardiman had signed a witness statement on 28 April 2002 and the Appellant thought that he "must have "phoned him - he couldn't really remember". We did not find this evidence convincing.
44. In the light of the inconsistencies in his evidence we did not find the Appellant to be a reliable witness. We conclude that the excise goods were not for personal use and that Customs and Excise have discharged the burden of proving that the excise goods were held for a commercial purpose.

Issue (2) - Was the review decision reasonable?

45. The second issue is whether, in the light of the conclusion on the first issue, we are satisfied that the person making the decision not to restore the vehicle and goods could not reasonably have arrived at that decision within the meaning of section 16(4) of the 1994 Act..
46. For the Appellant Mr Fletcher argued that the review decision of 20 January 2003 was unreasonable. Nowhere in that decision had the review officer stated or referred to the burden of proof and the wrong test had been applied. Further the review decision had not taken account of the facts that the Appellant had been a loyal employee and was of good character; that there had been no adaptation of the car for concealment; that this was a first offence; that there was no direct evidence to support the view that the excise goods were held for commercial purposes; and that the Appellant had been given no opportunity to explain what the goods were for and he relying upon R v Commissioners of Customs and Excise ex parte Mortimer and another [1998] 3 ALL ER 229 at 234a. .
47. For Customs and Excise Mr Singh relied upon Gascoyne v Customs and Excise Commissioners [2003] 2 W L R 1311 at paragraphs 83 and 84 for the principle that, although the burden of proof could be crucial in some cases, there would be many cases where in practice it played no real part at all. He argued that this was such a case and that Ms Perkins was plainly entitled to reach the conclusion she did simply on the basis that she did not believe the Appellant.
48. We found the review decision given by Ms Perkins to be commendably comprehensive and fair. We also found Ms Perkins to be an excellent witness. In her oral evidence Ms Perkins was somewhat unsure about the burden of proof; she knew that the 1992 Order had placed the burden of proving personal use on the Appellant and she knew that this had changed in the 2002 Regulations. However, she still thought that the Appellant had to show certain criteria to prove that the goods were not for commercial use.
49. In Gascoyne Neuberger J held, at paragraphs 83 and 84, that unless it could be shown that the burden of proof played a part in the determination of the review officer, the point could take matters no further. Although the burden of proof could be crucial in some cases there would be many cases where, in practice, it played no part at all. Whether the goods were for personal use or were imported for commercial purposes was an issue which had to be considered by reference to the quantity of goods imported, the statements made by the travellers, and the extent to which those statements were believable and common sense. In that case the customs officers were entitled to reach the conclusion they did simply on the basis that they did not believe the appellant.
50. Applying those principles to the facts of the present appeal we find that the burden of proof did not play any part in the determination of Ms Perkins because she did not refer to it in her review letter. She considered whether the excise goods were for personal use or were imported for commercial purposes by reference to the quantities of the goods, the statements made by the Appellant including the mis-declaration of the quantities of the goods and the concealment of some of the goods, and concluded that the goods were not for personal use. She was entitled to reach that conclusion on the information before her. This was not a case where the burden of proof played a part in her determination.
51. Mr Fletcher relied upon Mortimer and argued that the Appellant had been given no opportunity to explain what the goods were for. In Mortimer the applicants had imported excise goods in excess of the quantities mentioned in the 1992 Order. They were stopped and interviewed under caution. The goods and truck were seized. The second applicant claimed that they were not liable to seizure after which Customs and Excise took proceedings in the magistrates' court for their condemnation. The applicants then applied for judicial review contending, among other things, that the interviewing officer had not given the second applicant an opportunity of satisfying Customs and Excise that the goods had not been imported for a commercial purpose. The magistrates' court proceedings were then stayed. The Divisional Court held that, on a true construction of the 1992 Order, Customs and Excise were obliged to give the importer a fair opportunity to satisfy them that the goods were not being imported for a commercial purpose and no explanation meeting the requirements of the 1992 Order was given during the interview. However, the Divisional Court went on to hold that the applicant had a right to a full hearing in the magistrates' court and a right of appeal to the Crown Court and so the rights of the applicants were fully protected by the remedies open to them. It would not be right to make orders quashing the decision of Customs and Excise.
52. We note that Mortimer was decided in 1998 on the wording of the 1992 Order and before the decision of the Divisional Court in Hoverspeed. Accordingly, when Mortimer was decided it was thought that the burden of proof was on the importer to satisfy Customs and Excise that goods were not for commercial use. For that reason it was held that Customs and Excise were obliged to give the importer a fair opportunity to satisfy them that the goods were not being imported for a commercial purpose. Now that the principle in Hoverspeed applies, and the burden of proof is on Customs and Excise, it would appear that the same principle cannot apply. Even if it did, then the Appellant in this appeal has the right to a full hearing before the Tribunal (with a right of appeal to the High Court) and so his rights are fully protected by these remedies which are open to him. It would not be right to treat Ms Perkins' review decision as unreasonable merely because the Appellant had not been given an opportunity of satisfying Customs and Excise that the goods were for personal use. In any event there was in this appeal a request on 18 July 2001 for restoration, a request on 3 August 2001 for a review of the decision not to restore, and a direction by the Tribunal on 25 September 2002 for a further review. On any or all of these occasions the Appellant could have taken the opportunity of satisfying Customs and Excise that the goods were for personal use.
53. Finally Mr Fletcher argued that the review decision had not taken account of the facts that the Appellant had been a loyal employee and was of good character; that there had been no adaptation of the car for concealment; that this was a first offence; and that there was no direct evidence to support the view that the excise goods were held for commercial purposes. We do not regard these factors as rendering Ms Perkins' review decision unreasonable as they could not have altered her decision. Once she had decided that the excise goods were imported for a commercial purpose then her refusal to restore the vehicle and the goods was a reasonable decision.
54. We therefore conclude that, in the light of our conclusion on the first issue (that the excise goods were imported for commercial purposes), we are satisfied that the person making the decision not to restore the vehicle and goods could reasonably have arrived at that decision within the meaning of section 16(4) of the 1994 Act.

Issue (3) - What action should the Tribunal take?

55. The third issue is what action the Tribunal should take under section 16(4). For the Appellant Mr Fletcher argued that the Tribunal should direct another review under section 16 (4)(b) of the 1994 Act. However, in the light of our conclusions on the first two issues we will dismiss the appeal.

Decision

56. Our decisions on the issues for determination in the appeal are:

(1) that the excise goods were not held for personal use;

(2) that, in the light of the conclusion on the first issue, we are satisfied that Ms Perkins, who was the person making the decision not to restore the vehicle and goods, could reasonably have arrived at her decision within the meaning of section 16(4); and

(3) that the action the Tribunal should take under section 16(4) is to dismiss the appeal.

57. The appeal is, therefore, dismissed.

DR NUALA BRICE

CHAIRMAN

Release Date: 21 January 2004

LON/2003/8129

09.01.04