08/04/2004 03 8155 ALAN AND JENNIFER COOK Mr J D Demack  Manchester 9 March   

	EXCISE DUTY — non-restoration of 21,420 cigarettes seized as imported for commercial purpose — whether decision as to non-restoration reasonable and proportionate — considered against background of non-disclosure by appellants of previous dealings with Customs and untruths about source of income — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

 
 	
	ALAN AND JENNIFER COOK	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	Mr J D Demack (Chairman)
						Mrs M Ainsworth

Sitting in public in Manchester on 9 March 2004

The Appellants in person

Mr A Vinson of counsel instructed by the Solicitor for the Customs and Excise for the Respondents 

	© CROWN COPYRIGHT 2004

DECISION

1.	In this case, Alan Cook and his wife Jennifer Cook appeal against a decision on review of Customs and Excise by letter of 14 August 2003 refusing to restore to them 21,420 cigarettes.  The cigarettes were seized at Manchester Airport when Mr and Mrs Cook returned with them from Majorca on 5 May 2003.
2.	Mr and Mrs Cook made a request for restoration by letter of 4 June 2003.  In Mrs Cook’s case it was refused on 12 June 2003; and in Mr Cook’s case on 13 June 2003.  Each asked for the decision to be reviewed, and the letter of 14 August 2003 was the result.
3.	In the review decision, the review officer, Miss Julie Logan, noted that in interview both travellers admitted having been stopped by Customs 2 years earlier when importing a similar quantity of cigarettes that were initially seized, but later released.  They said they had had no other dealings with Customs, but a check by officers showed that Mr Cook had also had 10,600 cigarettes seized from him on 27 July 2001. Miss Logan noted that when confronted with the evidence in that behalf  Mr Cook had admitted it having denied it, and in addition he had said: “everyone brings in more than they should if they smoke”.  Miss Logan also noted that Mr and Mrs Cook had admitted importing 10 to 20 sleeves of cigarettes from Tenerife on two occasions.  (We observe that whilst Tenerife is Spanish territory, it is not part of the European Union so that travellers from it are allowed to import only 200 cigarettes into the UK duty free).
4.	Next Miss Logan recorded that Mr and Mrs Cook had said that they had paid  £16 per sleeve cash for the cigarettes - about £1500 in all - but the pair had taken only £1600 on holiday with them.
5.	She further noted that the interviewing officer found Mrs Cook had £545 in her handbag, which was claimed to be left after payment for the cigarettes.  He also found a receipt for €455 which Mrs Cook was unable to explain; yet a Visa card numbered on the receipt was also found as were 6 receipts for the cigarettes. Miss Logan also dealt with two other matters.  First, she mentioned that when asked about his work, Mr Cook said that he was a window cleaner earning about £300 week.  Mrs Cook said she did not work and had no income, but had had a bingo win of £1000 about 4 weeks earlier.  She thought her husband earned between £18,000 and £20,000 a year.  Secondly, she noted that both travellers claimed to smoke: Mr Cook about 60 cigarettes a day, and Mrs Cook 20 a day.  They estimated the cigarettes would last them 6 months.
6.	We do not propose to set out the legislation dealing with excise duty on the importation of tobacco.  It is set out in full in the review decision, and is repeated in the statement of case.
7.	We then turn to those sections of Miss Logan’s letter that deal with Customs restoration policy for seized excise goods, and her consideration of the evidence.  In relation to restoration, she disclosed Customs policy as one in which seized goods would not be restored, but that each case was examined on its merit to determine whether restoration might exceptionally be offered.  Amongst other things, she mentioned any evidence of previous smuggling as militating against restoration.
8.	In her consideration of the evidence, Miss Logan noted that both Mr and Mrs Cook had failed in interview to disclose the previous seizure of excise goods, both denying any earlier contact with Customs.  She added that even when confronted with evidence of the seizure of his goods in July 2001, Mr Cook had continued to deny it.  Miss Logan did not believe it credible that they had forgotten about their earlier dealings with Customs.
9.	Then Miss Logan dealt with the monetary discrepancy Customs had found.  She noted that both travellers said they had taken £1600 with them on holiday, which had come from savings, and that the cigarettes had cost them between £1500 and £1600: yet even though they claimed the cigarettes had been paid for in cash Mrs Cook was found to have £545 in her handbag when interviewed.  In Miss Logan’s opinion, the figures simply did not “add up”.
10.	Next Miss Logan disclosed that she had been in touch with the Inland Revenue to confirm Mr Cook’s earnings, only to be told that they did not hold a PAYE or self-assessment tax record for Mr Cook.  (In evidence before us, it emerged that Mr Cook had not worked for many years and that his only income consisted of various benefits from the Department of Social Security; and that Mrs Cook had a carer’s allowance from the same Department for looking after him).  Miss Logan considered on that evidence Mr and Mrs Cook misled the officer in order to give the impression of being able to afford their purchases.
11.	Miss Logan observed that Mrs Cook’s bingo win had taken place about 5 weeks earlier than claimed:  there was no evidence that the money you had used to pay for the holiday or fund the cigarette purchases.  Miss Logan also dealt with Mr and Mrs Cook’s rate of consumption of cigarettes concluding that, despite a contrary claim, they did not import a sufficient quantity to deal with all their requirements between holidays.  
12.	As in Miss Logan’s opinion Mr and Mrs Cook had offered no reason why Customs should depart from their policy of not restoring seized goods, she confirmed that they would not be restored.
13.	Travellers from other member States in the European Union to the United Kingdom are entitled to import duty free into the UK excise goods purchased duty paid in another member State which they have personally imported and are for own use.  Own use in this context includes goods intended as gifts.  It is for Customs to prove on the balance of probabilities that goods have not been imported for personal use or are held for a commercial purpose.
14.	Customs have a discretion to restore excise goods they have seized, even if they have gone on to forfeit them (see s.152 Customs and Excise Management Act 1979).  Appeals to these tribunals are against a refusal to exercise that discretion.  But the tribunals have only a limited jurisdiction in dealing with appeals.  They can only overturn a decision of Customs not to restore seized excise goods if it is unreasonable or disproportionate.  Unreasonable in this context means that Customs have taken into account something they ought to have ignored, or have failed to take into account something they should have considered, or that the overall decision as to non-restoration is one at which no reasonable body of Commissioners could have arrived.
15.	In the present case, Miss Logan conducted the review perfectly properly.  She considered all the evidence obtained by Customs in interview and subsequently, and the contents of correspondence between herself and Mr and Mrs Cook.  Mr and Mrs Cook were less than honest with Customs in a number of material respects, so that it was hardly surprising that their replies to all questions were viewed suspiciously, and that they determined that their cigarettes should not be restored  to them.
16.	After the most careful consideration, we have concluded that Customs decision not to restore Mr and Mrs Cook’s goods was not unreasonable nor was it disproportionate, so that we dismiss their appeal.

DAVID DEMACK
CHAIRMAN
MAN/03/8155