13/04/2004 02 8280 ALEXIS CASEY Mr D S Porter Mrs R Dean Manchester 29 March The Appellant through her Father Mr J Vinson of counsel for the Commissioners 
	RESTORATION —trip to Spain to visit sister– stopped at Manchester airport – 8800 cigarettes and 4.2 litres of spirits - purchased for herself and Partner – refusal to restore cigarettes and spirits unreasonable – appeal allowed

MANCHESTER TRIBUNAL CENTRE

 
 	
	ALEXIS CASEY	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	 Mr D S Porter (Chairman)
						 Mrs R Dean (Member)	

Sitting in public in Manchester on 29 March 2004

The Appellant through her Father

Mr J Vinson of counsel for the Commissioners

	© CROWN COPYRIGHT 2004

DECISION

1.	This is an appeal by Alexis Casey the Appellant made on her behalf by her Father she having died before the hearing, against the deemed refusal to restore 8800 cigarettes and 4.2 litres of spirits.  As no formal review was carried out within the statutory time limit of 45 days from the Appellant’s written request there is a deemed refusal to restore. The Appellant claimed to have imported the goods for her own and her Partner’s use.  The Commissioners claim that the excise goods were held for commercial purposes and were liable to duty in the UK.
The Parties
2.	Mr A Vinson of counsel appeared for the Commissioners and produced a bundle of documents for the Tribunal.  Mr B Casey appeared for the Appellant who had died before the hearing.
The Facts
3.	The Appellant had been nursing her Mother up to December 2001 when her Mother died of cancer.  This caused her great distress and she was unable to go back to work with the Southport and West Lancashire NHS Trust, who, as a result, gave her a year out from work.  Unfortunately, her depression worsened and she took her own life at the beginning of March 2003.  Mr Casey produced evidence as to the Appellant’s depression and the treatment she was receiving.
4.	The Appellant had visited her sister in Spain.  Her sister was well placed financially she ran a riding establishment and owned several properties.  It was hoped that the visit would help ease the depression, which it did.  On the way back to the airport her sister bought some Benson and Hedges and Berkley Cigarettes. The Appellant also had bought some L & Ms from a vending machine.  She stated that she smoked about 30 cigarettes per day and her partner smoked much the same amount.  The Respondents were unable to identify the quantity of the various cigarettes that had been bought, but conceded that there could only have been a few L & M’s as these had been bought at the vending machine.  Her sister had bought the cigarettes for the Appellant in return for £300 of sterling that the Appellant had given her so that she could buy a dog from some English people, who had wanted to be paid in cash in payment.  Her sister had used her credit card for the purchase of the cigarettes.
5.	The interview of the Appellant took place at midnight and she was in a distressed state.  She confirmed that she shared the rent with her Partner and she gave details of her other monthly and weekly expenditure, which amounted o £374.  We are satisfied that she shared the costs of her flat with her Partner.  We are also satisfied that her Father went out of his way to look after her if she was short of money. 
6.	The Appellant had not planned to buy so many cigarettes, but her sister had gone into the shop for her and the Appellant understood that the Benson and Hedges had run out and her sister bought the balance to make up the money that the Appellant had given her.
7.	The Appellant had been to Spain previously but had not bought any goods because she could not afford it.
8.	We find as fact the matters set out in paragraphs 3 to 7 above.
The Law
9.	The Excise Duties (Personal Reliefs) Order 1992 as amended at article 3 states:-
“Subject to the provisions of this Order a community traveller entering the United Kingdom shall be relieved from the payment of any duty of excise on excise goods which he has obtained for his own use in the course of cross-border shopping and which he has transported”
“Own Use” is defined in the Order as:-
“Own Use” includes use as a personal gift provided that if the person making the gift receives in consequence any money or money’s worth (including any reimbursements of expenses incurred in connection with obtaining the goods in question) his use shall not be regarded as own use for the purpose of this Order.”
•	The Commissioners may require the person to satisfy them that the goods are not being held for commercial purposes.
10.	Paragraph 2 of Article 9 of the Council Directive 92/12/EEC provides the criteria which must be taken into account in establishing whether or not the products are intended for commercial use: -
•	The commercial status of the person holding the products, and his reason for holding them
•	The place where the products are located or, if appropriate, the mode of transport used
•	Any documents relating to the products
•	The nature of the products 
•	The quantity of the products
Summing up
11.	Mr Vinson conceded that the review was out of time.  He submitted, however, that in spite of the very sad circumstances of this case the Appellant had brought into the country two different brands of cigarettes; she appeared to have insufficient money to justify the expenditure; she was not working; and had not established at the interview that there were any exceptional circumstances which should require the Respondents to restore the goods.
12.	Mr Casey for the Appellant submitted that his daughter was suffering from depression and would have been very distressed when she was interviewed.  In fact, when he picked her up she was very distraught.  He had lost his wife and was trying to do the best for a daughter who had become very depressed as a result of the loss of her Mother.  He was very concerned that she was looked after and provided money for her as and when she needed it.  The Appellant would not have been involved in smuggling as she was seriously unwell.  All he wanted was for her name to be cleared and for the Respondents to accept that she was not a smuggler.
The Decision
13.	My colleague and I have considered the facts in the case and have decided that the appeal should be allowed.  The evidence available to the Respondents at the interview clearly did not identify the various quantities of the cigarettes.  It is clear that they took the view that she was bringing in a mixed selection of cigarettes and could not therefore bought them for her own use as he would have preferred one brand.  We are satisfied that the Appellant’s sister had bought the cigarettes to an equivalent value of the sterling provided by the Appellant.  We are also satisfied that the Appellant’s Father helped her out financially particularly in view of the harrowing experience that had led to her going to see her sister in Spain.  The 8800 cigarettes would have lasted her and her Partner no more than six months.
14.	This tribunal hereby directs under section 16(4)(b) of the Finance Act 1994
1.	That the Commissioners do conduct a further review of the decision to refuse restoration of the goods and serve the same on both the Appellant’s Father and the Tribunal within 40 days of the release of this direction
2.	That the Review be conducted by an officer not previously involved, and shall be on the basis of the finding by the Tribunal that the goods were held for the Appellant’s own use and shall consider whether restoration should be made in the form of compensation and if so, shall specify the amount of compensation and the basis of the calculation.
3.	That the Appeal is determined on the above basis 
4.	That if dissatisfied with the Review, the Appellant through her father will have a further right of appeal to this Tribunal
15.	The Appellant’s Father had incurred the costs of coming to the Tribunal and we award him £50 by way of costs.

MR D S PORTER
CHAIRMAN
MAN/02/8280