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	United Kingdom VAT & Duties Tribunals (Excise) Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Jopling v Customs and Excise [2004] UKVAT(Excise) E00704 (23 April 2004) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00704.html Cite as: [2004] UKVAT(Excise) E00704, [2004] UKVAT(Excise) E704

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EXCISE DUTIES — importation of 8 kilograms of hand rolling tobacco by four travellers — vehicle forfeited — claim for restoration of vehicle by Appellant who was one of the travellers — whether review decision not to restore vehicle was reasonable — whether goods were for own use — whether goods imported for social distribution with no attempt to make a profit – whether proportionality applied — appeal allowed — direction for re-review

MANCHESTER TRIBUNAL CENTRE

ANDREW STEPHEN JOPLING Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr I E Vellins (Chairman)

Mr R Presho (Member)

Sitting in public in York on 13 January 2004

Miss Mandy Redmore for the Appellant

Miss N Wortley of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION
1. In this appeal the Appellant is Mr Andrew Stephen Jopling who resides in Hull. He appeals against the decision of the Commissioners not to restore to him a Vauxhall Astra car, registration number R 345 EHB, which had been seized by an officer of the Commissioners on 18 March 2002 when the Appellant and three passengers were stopped by an officer of the Commissioners at Dover Eastern Docks when the travellers were carrying in the vehicle 8 kilograms of tobacco. The decision is contained in a letter dated 19 August 2002.
2. At the hearing of this appeal at York on 13 January 2004 the Commissioners were represented by Counsel, Miss N Wortley. The Appellant did not attend, but was represented by one of the travellers, his partner Mandy Redmore. She indicated at the hearing that the Appellant himself was in Belgium on the day of the hearing and wished the appeal to proceed in his absence with Mandy Redmore representing him. She gave evidence on behalf of the Appellant. Evidence on behalf of the Commissioners was in the form of witness statements which had been served on the Appellant who had not required the witnesses of the Commissioners to attend the hearing.

Background to decision

3. On 18 March 2002 the Appellant was driving his Vauxhall Astra car with his partner Mandy Redmore, his sister Joanne Frisby and his aunt Linda Margaret Atkinson as passengers in the car.
4. The officer, asked them a number of questions, and in reply the Appellant and his passengers told the officer that they had been to Belgium to visit a friend and that they had each bought 40 pouches of tobacco (2 kilograms each. In addition, Mrs Atkinson had bought 400 cigarettes and Mandy Redmore 180 cigarettes. They stated that they had been stopped by customs on the way out and also that the Appellant had been stopped by Customs on a previous trip a couple of days previously and on that occasion had been issued with a Notice 1 by Customs.
5. The four travellers were then individually interviewed by officers of the Commissioners.
6. The Appellant told an officer that the trip had been planned the previous day and that Mandy Redmore had paid for the ferry ticket. He explained that he had last been over to Belgium the previous Tuesday or Wednesday with his sister, Joanne Frisby, and on that occasion he had bought 40 packets of Samson tobacco (2 kilograms). He said that he had given the tobacco to his father. On that occasion he had also bought 200 cigarettes which were for Joanne Frisby, his sister.
7. The Appellant explained that on 18 March 2002 he had bought 4 packets of Samson tobacco (2 kilograms) and said that these were for "Trevor, he's done some DIY for me". He had also bought 3 cases of Stella beer for himself. He told the officer that he did not smoke. He had worked as a lorry driver but at the time he was having two weeks off work but was intending to restart in a couple of weeks. He said that when he had travelled on the previous week he had just travelled with his sister Joanne Frisby and that he had paid for his goods and his sister had paid for her goods. He said that he did not receive any money for the goods he had bought on that occasion. At that time he had been earning £500 per week. With regard to the goods purchased on 18 March 2002 he said that he had paid for his own goods which cost about £74 for the tobacco and about £6 for the beer. He said that he might have paid for Mandy Redmore's goods because she was his girlfriend (partner) and they had a joint account. He said that on the way out, although all four had travelled down to Dover from home together, there had been a disagreement and on the ferry he and Joanne had travelled over as foot passengers, with Mandy and his aunt going on the ferry out in the vehicle, and that those in the vehicle had been stopped and searched and interviewed on the way out. He said that he had paid for his ticket and for the ticket for Joanne costing £7 each. He had seen a Customs Notice 1 before when he had been handed the Notice on the previous occasion when he had travelled on the Tuesday or Wednesday when he had been stopped and searched. He signed the officer's notebook as a true and accurate account.
8. Joanne Frisby told an officer at her interview that she was the sister of the Appellant. She had been over to Belgium the previous week with the Appellant and had bought 2 kilograms of tobacco. On that occasion the Appellant had also bought the same quantity. She had given 10 packets to her cousin and had about 30 left. She confirmed that on that occasion the Appellant and herself had been given a Notice 1 by Customs.
9. Joanne Frisby explained to the officer that on 18 March she had been to Belgium to a pub to see a mate of the Appellant, and that she and the Appellant had gone as foot passangers because the Appellant and Mandy had had a row in the car. She said that she smoked hand rolling tobacco in the house and cigarettes out of the house. She said that she may give some of her tobacco to her cousin as he was doing work on her mother's bungalow. She said that she smoked 1 pouch of tobacco a week and cigarettes when she went out. She gave details of her income and expenditure and stated that she had no savings and had financed the trip from her previous week's wages.
10. Mrs Linda Atkinson told an officer that of the goods in the vehicle on 18 March 2002 her goods were 4 packets of tobacco, 400 cigarettes, 5 packs of cigars and a case of beer. She said that the Appellant had purchased these goods for her and that she had given him the cash, about £80-£90. She said that the cigars were for her husband, 200 of the cigarettes were for her daughter and the tobacco and other cigarettes were for herself and her husband.
11. Mandy Redmore told an officer at her interview that she had been over to Belgium to see friends and gave details of the address to the officer. She told the officer that she had not been over to the continent before to get tobacco. She said that she was not a big smoker, but had been told that tobacco was cheaper than cigarettes so she bought tobacco. She said that she was going to give her father a packet of tobacco as he had just purchased a horse for her daughter and that the tobacco would be a good gesture. She explained that the Appellant was her partner. She said that the Appellant had travelled over to Belgium on the previous Wednesday and had bought 2 kilograms of tobacco. She told the officer that the tobacco was for herself and a packet for her father and that she smoked about 10 cigarettes a day. She said that she did not usually smoke rolling tobacco but because her sister had told her that tobacco was cheaper she would "give it a go". She was asked what the Appellant had done with the tobacco he had bought on the previous Wednesday and replied that it was still at home. She expected the tobacco to last probably until Christmas or longer. She explained that she had had a bit of an argument with the Appellant on the journey out and that they had split up and that she had gone with Mrs Atkinson in the car and that the Appellant and Joanne had gone on another ferry, and eventually they all met up in Calais.
12. The officer seized the tobacco which was in excess of the guidelines. The officer was not satisfied that it was for own use. The officer seized the other excise goods because they were packed with goods liable to forfeiture, and he seized the car because it was used to transport goods liable to forfeiture. His reason for seizure was that the travellers had in their possession a substantial quantity of excise goods. The Appellant and his sister were giving goods away in exchange for favours and had previous contact with the Customs the previous week when they had been issued with a Notice 1. He considered that the explanation with regard to the travel details was not credible as the passengers had consecutive tickets, and the purpose of the previous journey 3 days previously was not credible. The officer seized the 8 kilograms of tobacco, 560 cigarettes and 100 cigars, 4 bottles of wine and 3 cases of Stella lager and seized the Vauxhall Astra car.
13. The Appellant wrote to the Commissioners on 10 April 2002 requesting restoration of the vehicle. The Commissioners replied on 29 May 2002 refusing restoration of the vehicle. A letter was sent to the Commissioners on 8 July 2002 requesting a departmental review. The Commissioners wrote on 19 August confirming the contested decision not to offer restoration of the vehicle.
14. In the review letter of 19 August 2002 the review officer, Mr Weston, reviewed the interview notes and the law and the policy of the Commissioners. The officer checked commercial records and established that the Appellant was, and continued to be, a regular freight driver on the Dover-Calais route, and he had been given the Notice 1 by Customs only a few days earlier than 18 March 2002. The Appellant had been asked by the initial officer what he did for work and had replied that he was a lorry driver, but had failed to mention that he was a regular freight driver on the Dover-Calais route and the review officer concluded that this was a deliberate attempt to deceive the officer. When the Appellant and Joanne Frisby had been asked what they had bought the previous week they both said that they had bought 40 pouches each (2 kilograms each) and they had bought the same quantity on 18 March 2002. However, the officer found from departmental records that the Appellant and his sister on the previous occasion had actually imported 5 kilograms of tobacco (100 pouches). The review officer concluded that, in misstating the amount previously imported on the previous week, the Appellant and his sister were attempting to deceive the officer about the quantity then imported.
15. The Appellant himself did not smoke and had told the officer that the tobacco was "for Trevor, he's done some DIY for me". The review officer concluded that this meant that the tobacco was not for "own use".
16. The review officer concluded that Mandy Redmore's tobacco was not intended for her own use. She had explained that she only smoked about 10 cigarettes a day and would not normally smoke "roll ups". 40 pouches of tobacco would equate to over 12 months' supply according to her declared consumption rate. Joanne Frisby, if purchasing 2 kilograms of tobacco the previous week and 2 kilograms of tobacco on 18 March 2002 was therefore purchasing some 4 kilograms of tobacco within a week which equated to well over 18 months' supply according to her declared consumption rate. The officer concluded that the tobacco was not all intended for her own use. It was not plausible that she would spend £200 in a week on tobacco. He concluded that she was going to sell some of the tobacco for money or moneysworth.
17. In that review letter the review officer did not consider the question of proportionality of the seizure. In a letter from the Appellant's solicitors dated 26 March 2002 it was denied on behalf of the Appellant that he and his family were engaged in the commercial importation of goods. The solicitors stated that the value of the vehicle was approximately £4,000 and that the consequent loss of the vehicle to the Appellant set against the duty payable was entirely disproportionate. The vehicle registration document of the vehicle had been produced to the Commissioners showing that the Appellant was the owner of the vehicle which was a 1.4cc Astra 5 door hatchback.
18. The Appellant's solicitors, in a further letter of 3 July 2002, stated on behalf of the Appellant that in the course of his employment the Appellant had become firm friends with a Belgian family and the purpose of his previous trip was to see his Belgian friends and provide them with information that would enable them to travel to the United Kingdom at what would be reduced rates. He had booked a 24 hour return trip for that purpose. He telephoned these friends who ran a guest house to warn them of his arrival only to learn that they were not on the premises or expected to return for some hours. As a consequence he turned his vehicle round, returning to the ferry, and drove home. He had then decided to undertake the same journey some days later taking with him his three passengers. The letter stated that the Appellant had confirmed that he had bought the hand rolling tobacco "as a gift in return for work at his home by a friend". The solicitors suggested that the Appellant had the income to support the purchases and had been in well-paid employment and had started his own business as an owner and driver. The solicitors alleged that the amount of goods in excess of the guidelines was small and that the seizure was disproportionate. They submitted that neither the Appellant or his passengers intended to profit from the goods and that the Appellant was not involved in any form of commercial enterprise in connection with the goods. The goods had not been concealed in the vehicle. The Appellant's Notice of Appeal was prepared by solicitors on his behalf. They argued that the burden of proof was on the Commissioners. They denied that the goods were being imported for a commercial purpose. They suggested that the outlay and the cost of travel from Hull to Dover, and the cost of crossing from Dover to the continent and back, and the purchase of the goods would not have made a profitable enterprise if the Appellant and his passengers were wishing to sell the goods for profit. The only items that exceeded the guideline quantities were the tobacco, and these quantities did not greatly exceed the guidelines. The solicitors pointed out that the Appellant and the three passengers were left 300 miles from their home address and merely told to "get a bus". The letter indicated that Mrs Atkinson was his mother whereas in fact she was his aunt.
19. At the hearing of the appeal, Mandy Redmore gave evidence that she was the Appellant's partner and that they co-habited. She said that in the week prior to 18 March 2002 the Appellant and his sister had gone to Belgium to see his friends Gerd and Natasha who ran a pub and restaurant in Belgium. The Appellant had obtained for them some ferry tickets to come to England to see the Appellant but when he arrived there in Belgium he found that Natasha was poorly and the pub/restaurant was closed. She said that on the weekend of 18 March 2002 the Appellant, herself, his sister and aunt had then travelled over to Belgium again to see the Appellant's friends. She said that, as they got to Dover on the journey out, she and the Appellant had a disagreement and consequently the Appellant and his sister got out of the car and travelled on a ferry separately from Mandy Redmore and Mrs Atkinson. Mandy Redmore was stopped on the way out in the vehicle and handed a Notice 1. She met up with the Appellant at the end of the ferry crossing and they all travelled to Belgium where they saw the friends and handed the tickets to the friends. They stayed a few hours and purchased the goods on the return journey. She said that on the ferry there were signs stating that there was no limit on the amount of tobacco and drink that could be brought back to the United Kingdom. They were given free bottles of wine on the journey back on the ferry. On arriving in the United Kingdom at Dover the vehicle was pulled over by officers of the Commissioners. The goods were not hidden but were in the back of the vehicle. They disclosed to the officers what each of them had purchased. She confirmed that the Appellant did not smoke and that his tobacco was purchased for an uncle who had been doing a lot of work for them in their house. She stated that the tobacco was not a payment to him but was a gift. After the car was seized they had to return home by taxi, train and then by a hired vehicle. All the passengers did not wish for the goods to be returned to them but the Appellant and Mandy Redmore required the return of the vehicle. She said that she had been the one who used the car because she was a nurse and needed the car to go to and from work. She said that the car had been purchased second hand by the Appellant from his brother-in-law. She said that £3,000 had been paid by the Appellant for the vehicle from monies in their joint bank account. She had used the vehicle, and the vehicle was not needed by the Appellant who was a lorry driver. At the time he was just buying a heavy goods vehicle to set up in business himself. She said that the car had been purchased a few months before it had been seized and that at the time of the seizure it had been worth about £2,700 and would now be worth about £2,500.
20. She said that when the Appellant had gone over to Belgium with his sister the previous week he had not telephoned ahead to tell his friends he was coming, but he had telephoned ahead when they went on the weekend of 18 March 2002. She said that the Appellant had met the Belgian friends whilst was driving in Belgium and he often stayed with them. She confirmed that on the previous occasion the Appellant had purchased tobacco and had given some of it to his father as a present without expecting or requiring any payment. She stated that she currently smoked 15 cigarettes a day but that these were in the form of cigarettes and not hand rolled tobacco. She stated that on the weekend of 18 March 2002 she had been bringing tobacco partly for herself and partly for her father and that she had intended to have a go smoking hand rolling tobacco. As the tobacco had been seized she had not smoked the hand rolling tobacco, and she did not, in fact, smoke hand rolling tobacco except occasionally. She worked full time as a nurse and she stated that she and the Appellant were not in any financial difficulty. They had paid a large deposit of £5,000 on the purchase of his HGV. She confirmed that neither herself, the Appellant or any of the passengers had intended to sell any of the goods. It had cost £69 to take the car over on the ferry, and the Appellant and his sister had paid an additional £14 for the ferry out. The Belgian friends had been to England to see them in 2002, and in September 2003 the Appellant and Miss Redmore had been over to Belgium to see the friends. On the weekend of the travel of 18 March 2002 she had been off work and had accompanied the Appellant. She said that the Appellant's aunt was a heavy smoker who normally smoked rolling tobacco. She said that the Appellant's sister smoked cigarettes in the evening and rolling tobacco during the day. All four of the travellers therefore had different smoking habits. They had all purchased the identical amount of 2 kilograms of tobaccos because they had thought that that was an amount that they could bring back.
21. Miss Wortley submitted on behalf of the Respondent that the decision of the review officer was reasonable on the evidence before him and that he reasonably formed the view that the 8 kilograms of tobacco were being imported for commercial purposes. She submitted that 8 kilograms was a relatively large amount bearing in mind that the Appellant and his sister had imported 5 kilograms of tobacco only a few days previously. The Appellant himself does not smoke. The amounts imported were in excess of the smoking habits of the other passengers. Miss Redmore had admitted that she was not in the habit of smoking hand rolled tobacco. It was not likely or probable that she would import 2 kilograms just to try it. On the admission of the Appellant at the interview, some of the tobacco was in return for favours for work done on his house and this would amount to a commercial use. The Appellant had travelled regularly before this and continues to travel across the Channel regularly in connection with his occupation. Accordingly, there would have been no need for the Appellant to buy tobacco in such a quantity on this occasion unless he had a commercial purpose in mind. She submitted that the purpose of the journey was not credible. It was not credible that the Appellant and his sister would have travelled to Belgium a few days previously without telephoning their friends first if their purpose was to visit the friends in Belgium. He had not stayed for more than a few minutes on the first journey and on the second journey had only stayed for a short period of hours. If the purpose was to deliver tickets, the tickets could have been posted or sent without the Appellant travelling personally. The journey was at night at 2 am which is not a time that one would visit friends. She suggested that the review officer had not considered the question of proportionality because the goods were being used for commercial importation where proportionality was not a factor, as indicated in the case of Lindsay v Customs and Excise Commissioners [2002] EWCA 267. She pointed out that in any event the duty evaded on the tobacco was £774.48 and that the seizure of the vehicle would not be regarded as not proportionate.

Conclusions

22. We make the following findings of fact.
23. We find that on 18 March 2002 the Appellant was bringing back to the United Kingdom 2 kilograms of tobacco and a small amount of other items. We find that the Appellant, who does not smoke, was bringing the tobacco to give to a man called Trevor who had done some DIY for the Appellant and his partner in their home. The tobacco cost the Appellant approximately £74. We find that the Appellant intended the tobacco as a gift to Trevor, who was his friend. Trevor had not charged the Appellant for the DIY work. We are satisfied that the Appellant did not intend that he would be paid for the tobacco and that he was not bringing to the United Kingdom the tobacco for resale. We find that he was not importing the tobacco for commercial use. We find that he was not a commercial smuggler and that he was importing the tobacco for social distribution with no attempt to make a profit. We find that on his previous trip a few days before he had brought back 2 or 3 kilograms of tobacco which he had intended to give to his father and some cigarettes to his sister. We find that the Appellant was a lorry driver earning some £500 per week, and shortly before the visit to Belgium he had purchased his own HGV to work as a self-employed driver. The two trips to Belgium were made whilst he was purchasing the new vehicle and waiting to start that work. We find that his partner is a full time nurse earning a reasonable wage and that the couple have no financial need to sell tobacco.
24. We find that Mandy Redmore purchased 2 kilograms of tobacco, mostly as a present to her father, with some of the tobacco to be smoked by her if she found that she liked to smoke hand rolling tobacco. We find accordingly that her tobacco was not being imported for sale at a profit but for social distribution and for consumption by herself and her father. We find that she was not a commercial smuggler, and that the goods were intended for the sole use of herself and her father.
25. We are satisfied that Mrs Atkinson was a heavy smoker and that her goods were for herself, her husband and her daughter. We are satisfied that she was not a commercial smuggler and that the tobacco was purchased for the use of herself and her family with no attempt to make a profit and no expectation of any payment.
26. We are satisfied that Joanne Frisby purchased her 2 kilograms of tobacco partly to be smoked by herself and partly to give to a cousin. It would appear that the same cousin was the man Trevor who had worked for the Appellant's house. We are satisfied that Joanne Frisby was not a commercial smuggler and that she was importing her tobacco for use by herself and for social distribution with no attempt to make a profit.
27. We find that the Appellant was not being entirely truthful to the officers. We did not believe that the purpose of the Appellant's two journeys was to visit friends in Belgium. It did not make sense that he did not telephone in advance prior to his first journey nor why he could not simply have posted the tickets to Belgium to friends who were to use the tickets to visit the Appellant in the United Kingdom. We further did not believe that the reason why the Appellant had travelled from Dover on a different ferry to his partner had been because of an argument on the journey down. We found that the main purpose for the crossing at the weekend of 18 March had been for the four travellers to purchase 2 kilograms of hand rolling tobacco each. However we find that although these amounts were in excess of the guidelines the tobacco was not being imported for a commercial reason. The four passengers were not commercial smugglers.
28. The case of Lindsay requires the distinction to be drawn between the commercial smuggler and the driver importing goods for social distribution where there is no attempt to make a profit. In the latter case the principle of proportionality is to be applied, so that the case should be considered on its particular facts, which will include the scale of importation, whether it was a first offence, whether there was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship. None of these factors were considered by the initial officer nor by the review officer. The review officer has made no distinction between a true commercial smuggler and a driver importing goods for family and friends without profit, and passengers importing goods for family and friends without profit. Furthermore the officers have not considered the effect of the Hoverspeed cases that the onus of proving that goods are held for a commercial purpose lies with the Commissioners on the balance of probabilities. We find that the Commissioners have not fulfilled the onus upon them in this case. We order that the Commissioners should carry out a re-review and consider the principle of proportionality in the light of our findings as set out in this decision, and in particular that the goods were purchased by the travellers not for profit. We request the review officer to take into account the mitigating factors raised by the Appellant and his partner which have not properly been considered by the Commissioners.
29. Accordingly we allow the appeal to the extent that we direct that the Commissioners should carry out a further review of their decision not to restore the vehicle to the Appellant in the light of our findings. We make no order for costs.

Mr IE VELLINS
CHAIRMAN

MAN/02/8225