Green v Customs and Excise [2004] UKVAT(Excise) E00691 (05 April 2004)

MAN/01/8252

EXCISE DUTY  -  refusal of Respondents to restore seized excise goods — error of law of review officer as to burden of proof of commerciality — appeal allowed
MANCHESTER TRIBUNAL CENTRE

	JACQUELINE GREEN 	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:    Mr J H FRYER-SPEDDING CBE  (Chairman)
					         MR J E DAVISON	(Member)	 	

Sitting in public in Newcastle upon Tyne on 22 January 2004

The Appellant did not appear and was not represented

Mr G Duff, of counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004

DECISION

1.	 There was no attendance by or on behalf of the Appellant.  Accordingly, we determined to proceed under the provision of rule 26(2) of the Value Added Tax Tribunals Rules 1986 (as amended).
2.	The Appellant was stopped by officers of the Respondents at Dover on 5 June 2001.  She confirmed that she was travelling with a Mr Terence Rowley.  She was asked if she had any cigarettes or tobacco.  She produced 1,000 cigarettes and 0.5 kg tobacco.  She said that this was all that she had.  When an officer examined her handbag, he found a further 600 cigarettes.  
3.	The Appellant stated that the goods were for her own use.  She generally smoked cigarettes, but she smoked tobacco occasionally.  She said that she smoked 60-65 cigarettes a day and had paid £76 or £80 for each box in cash. 
4.	The officer asked when the Appellant had last travelled to Calais and she said that she had done so in April.  She said that she had been across the channel just once on 5 June 2001.  When the officer sought confirmation that she had not been across on the morning of that day, she said that she had been to Oostende but had not bought anything.  He subsequently seized the goods.
5.	The Appellant made a request for restoration to the Respondents by a letter received by them on 11 June 2001.
6.	By a letter dated 29 June 2001 the Respondents refused restoration.  A request for a review of that decision was made by the Appellant by a letter received by the Respondents on 2 July 2001.  
7.	By a letter dated 16 August 2001 Mrs G M Hurrell, the review officer, informed the Appellant that the decision not to restore the goods was confirmed.  In that letter, having set out the material facts and law relating to the matter, Mrs Hurrell wrote:
“I am therefore satisfied that you failed to rebut the statutory presumption of commerciality, and that the excise goods were properly liable to forfeiture.  I must therefore reach the conclusion that the goods were correctly seized.”
She then referred to the Commissioners’ policy as to restoration and concluded that there were no exceptional reasons for restoration.
8.	We consider that the Review Officer erred in law as to the presumption of commerciality.  The burden of proof in this context lies upon the Respondents: R (Hoverspeed) Ltd v Customs & Excise Commissioners [2003] 3 WLR 1212.  There is substantial evidence in favour of the arguments in this case of the Respondents.  Nevertheless, we do not consider that this is a case where the Review Officer must necessarily have reached the same conclusion if she had directed herself correctly in law: cf. John Dee Ltd v Customs & Excise Commissioners [1995] STC 941.  Further, we consider that this is a case where it would be open to the Appellant to raise the issue of private use in the course of restoration proceedings: see Customs & Excise Commissioners v Dickinson [2003] EWHC 2358 (Ch).
9.	Accordingly, we allow the appeal.  We direct the Respondents to conduct, within six weeks of the release of this decision, a further review of the original decision not to restore the seized items.  In doing so, the Respondents must take into account the legal position as to the burden of proof of commerciality as set out in the Hoverspeed case.

J H FRYER-SPEDDING CBE
CHAIRMAN
Released:
MAN/01/8252