RESTORATION— Son took commercial vehicle to Calais for the day – purchased 265.5 kg hand rolling tobacco, 800 cigarettes, 480 litres beer, 315 litres wine and 3.7 litres spirits — commercial purchase not in dispute — car offered for restoration on payment of £5,346.88 — Appellant unwilling to pay — unaware of son’s activities — third party car — appeal dismissed
MANCHESTER TRIBUNAL CENTRE

	MUSHTAQ AHMED		Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:    D S PORTER  (Chairman)
					         Mr R PRESHO (Member)	 	

Sitting in public in Newcastle upon Tyne on 3 March 2004

Mr L Muscat, solicitor, appeared for the Appellant

Miss E Piasecki, of counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004

DECISION

1.	 This is an appeal by Mushtaq Ahmed (the Appellant) against the refusal to restore a Mercedes commercial vehicle number P93 YJR seized on 19 March 2001 driven by his son, Urban Ahmed, except on the payment of £5,346.88.  The condition was set out in a letter dated 14 January 2003.  The Appellant states that the Mercedes Van belongs to his business and that he was unaware that his son had taken it abroad to buy the goods.  The Respondents allege that the Mercedes Van was not a “third party car” and that the Appellant knew perfectly well that the car was being used by his son for smuggling. 

The Parties
2.	Miss E Piasecki of counsel appeared for the Commissioners and produced a bundle of documents for the Tribunal.  Mr Muscat, a Solicitor, appeared for the Appellant and called Urban Ahmed and Mr Sukhdev Singh a friend of the family and of the Appellant’s son. 

Preliminary Issue
3.	Miss Piasecki objected to the fact that she had only received the copy statements of the Appellant, Urban Ahmed and Sukhdev Singh, together with an exhibit bundle the day before the hearing.  They had clearly been available before that time.  The Tribunal decided that as the witnesses were all present and it was possible to cross-examine them, the hearing would proceed.

The Facts
4.	The Appellant took the oath and confirmed that he had been running Naji’s Continental Supermarkets for some 18 years with his brother.  By 1998 they had 17 shops, a warehouse and 50 people working for them. The Appellant had become ill and had been unable to run the business, which got into difficulties and it was decided to close it down.  He now ran, with his brother and his son, a more modest enterprise.  A report form the hospital giving details of his heart condition was produced to the Tribunal.
5.	The Appellant, his son and daughter-in-law, two further children and his brother’s family live together in a large house.
6.	His son Ufran had travelled to London every Tuesday for the last three to four years.  They originally hired a van, but had subsequently bought the Mercedes with the help of a loan from the HSBC Bank.  His son would go to Fruityfresh (Western) Limited at Heathrow, arriving at 2.30 am Wednesday morning. He would then continue to Green Line in central London arriving at 7.0am to pick up Bangladeshi fish and vegetables.  On his return journey, he would collect further goods from Royal Sweets in Leicester.  His son’s friend Sukhdev Singh accompanied him.  The vehicle was insured, but not for travel on the continent.  The insurance policy was not produced to the Tribunal.
7.	On the occasion leading to the seizure, his son had asked if he might travel on the Sunday as he had a friend who wanted some stuff delivered to London.  It is unclear what that was, but at the Tribunal the Appellant stated that he understood that it was furniture.  The Appellant confirmed that his son never borrowed the vehicle and that he, the Appellant, had never been abroad in it.  He also confirmed that he never gave his son or his other children substantial amounts of money.
8.	His son telephoned him from Dover and the Appellant was appalled when he learnt that the Mercedes Van had been seized where upon he terminated his son’s employment in the family business.  It appears that his son was re-employed some few months later.
9.	The Appellant went to Dover to be interviewed and to explain that he was an innocent third party and was totally unaware of his son’s activities.  The trip had cost him £243.00 and the Mercedes van had not been returned.
10.	Ufran Ahmed took the oath and was quite open about his smuggling activities.  On the 7 October 2000 he had hired a van and had also taken his Father’s Mercedes Van and crossed to Calais. He had made £100 profit collecting goods and selling them through his cousins in London He had decided to return again in the hired Van the next day but had been stopped, and the van and the goods had been seized.  He was able to return home in the Mercedes Van on the 9th October 2000 and his Father was none the wiser. 
11.	In October 2000 he had bought a Mazda motorcar for £50 and used that to go abroad. On his return to England that car had been seized as well. He had had to travel back by train but his Father was unaware of this, as he had not gone home.  He often did not go home in the evening if he had been out with friends.
12.	He had asked his Father if he could use the Mercedes Van on the Sunday in question.  He and his friend Sukhdev Singh had travelled to Calais and purchased £5,000 of goods and put them in the hotel bedroom. They had gone back again the next day and were stopped on their return and the goods and Mercedes Van were seized.  The Appellant stated that he paid his son £150 per week.  Mr Ufran Ahmed confirmed that had borrowed £9000 from the HSBC Bank and used his credit cards to purchase the goods.  He also stated in his interview that the families contributed to the costs.  He confirmed that the goods were sold through his cousins in London.  He had lost £7,500 as a result of the goods in the Mercedes Van and the hotel being seized.
13.	 We find as fact the matters set out in paragraphs 4 to 12 above.
The Law
14.	The Customs and Excise Management Act 1979 states that any vehicle which has been used for the carriage of the goods which have not paid duty and are forfeited is also liable to forfeiture, although the Commissioners may restore the vehicle on such terms as they think proper.
Summing up
15.	Miss Piasecki submitted that the Appellant must have known about his son’s activities.  His son had clearly brought in goods before.  They all lived together as a very close family and must have known what each other were doing.  In the review letter of 14 January 2003 it was confirmed that the duty on the imported goods was £26,734.43 and 20% of that figure was £5,346.88.  It was thought that that amount was proportionate to the amount required to be paid by the Appellant in order to have the Mercedes Van returned to him. The Appellants son was 23 years of age and had £11,000 available over a period of 5 months with which to buy the goods.  The Appellant had apparently made no attempt to enquire about his son’s activities.  This is not credible when his son both lived and worked with his Father.  The decision to restore the goods on the above terms was reasonable and the case should be dismissed.
16.	Mr Muscat submitted that the respondents had produced no evidence to show how the Appellant was supposed to know what his son was doing.  The Appellant had never lent or given any large sums of money to his son.  His son usually travelled to London on a Tuesday and returned on the Wednesday.  He had not borrowed the Mercedes Van before and there was no reason for the Appellant to be concerned at his son borrowing the Mercedes Van on the Sunday.  He stated that both the Appellant and his son were telling the truth in saying that the Appellant knew nothing about his son’s activities.  It was unreasonable of the Respondents to require a payment of £5,346.88 for the return of the Mercedes Van.  The appeal should be allowed.

The Decision
17.	My colleague and I have considered the facts and are satisfied that the Appellant was well aware of his son’s smuggling activities.  The Appellant insisted that his son only used the Van on a Tuesday and Wednesday and that he had never used it on any other occasion than the Sunday in question. 7 and 8 October were in fact a Saturday and Sunday. These were presumably working days for the Appellant and his family.  Clearly his son had been able to use the Mercedes Van on a Saturday before the trip in question. Further, no evidence was produced of the insurance policy.  It is clear that the Appellant’s son had been able to go to Calais without any difficulty.  No evidence was given by him to the effect that he had needed to arrange some insurance.  If it had been the case the insurance company would have contacted the Appellant to confirm the arrangements. We therefore conclude that the insurance allowed use on the continent.
18.	It is also clear that Ufran Ahmed had been smuggling for some time.  We do not find it credible that he would borrow £9000 from the Bank for this purpose unless he knew he would make an adequate return on is investment.  We are also at a loss to see how he could borrow that amount of money on an income of £150 per week.  The bank account of the business was produce to the Tribunal and showed balances in excess of £90,000.  We believe that any borrowing would have been secured with the help of the business. 
19.	Further it appears from the bundle of documents that Mr Muscat wrote to HM Customs and Excise on the 24 February suggesting that the Appellant would pay £3,000 to have the Mercedes Van returned, and again on 5 June 2003 offering £3,500 to have it returned.
20.	We therefore dismiss the appeal. 
21.	The Respondents did not ask for costs so we award none.

D S PORTER
CHAIRMAN
Released:
MAN/03/8111