30/03/2004 03 8159 David Allen Mr I E Vellins Mrs G Pratt Manchester 30 March The Appellant appeared in person  
	  — Excise Duties — Importation of 7.5 kg of hand rolling tobacco by Appellant — seizure of tobacco — admission by Appellant that part of goods was for relatives and that they would pay for some of the tobacco — whether review decision not to restore excise goods was reasonable — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

 
 	
	DAVID ALLEN	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	 Mr I E Vellins (Chairman)
						 Mrs G Pratt (Member)	

Sitting in public in Manchester on 30 March 2004

Mr K Lawford for the Appellant 

Mr J Gray counsel instructed by the Solicitor for the Customs and Excise for the Respondents

	© CROWN COPYRIGHT 2004

DECISION

1.	This is an appeal by Mr David Allen against the decision of the Commissioners dated 11 August 2003 refusing to restore to the Appellant 7.5 kgs of hand-rolling tobacco which had been seized by an officer of the Commissioners on 14 June 2003 when the Appellant was stopped at the UK control zone in Coquelles France whilst importing the tobacco without payment of duty.  The Appellant had requested restoration of the tobacco by letter dated 26 June 2003 and the decision was made by the Commissioners to refuse the restoration on 10 July 2003.  The Appellant had requested a review of that decision by letter dated 17 July 2003.  The review decision not to restore the tobacco was confirmed on the 11 August 2003.
2.	At the hearing of this appeal at Manchester on 30 March 2004 the Appellant was represented by his friend Mr K Lawford.  The Commissioners were represented by Mr J Gray, counsel.  
3.	Evidence was given at the hearing of this appeal by the Appellant himself and by the review officer Mr G Crouch.
The Facts
4.	We make the following findings of fact in this appeal.
5.	On 14 June 2003 the Appellant was a coach passenger in a coach which was returning to the United Kingdom from a day trip to the continent of Europe.  He had been travelling with a Mr John Dawson.  At 11:15 am the Appellant was intercepted by an officer of the Commissioners Mr Ball at the UK control zone in Coquelles France.  The Appellant was carrying 7.5 kgs of Old Holborn hand rolling tobacco.
6.	The Appellant told the officer that he had last travelled abroad three weeks previously to Greece, and had brought back to the United Kingdom 3 kgs of hand rolling tobacco, which he said had been shared by him with his uncle and his father.  The Appellant told the officer that the 7.5 kgs of tobacco that he was bringing back to the United Kingdom on 14 June 2003 were in 150 pouches, and the intention was that this should be shared as to 50 pouches each among himself his father and his uncle.  He said to the officer “they will be paying me £5.25 for each pouch.  Maybe not my dad because it is fathers day”.  He then mentioned to the officer that because he had told the truth he would have his goods seized.  The officer informed him that he was not allowed to sell goods even for cost price.
7.	The Appellant stayed for an interview and told the officer that he smoked some 6 to 7 pouches of tobacco a week and more at the weekend, and that he could make 80 cigarettes from a pouch.  He lived with his mother earning £1,100 net per month and paid £100 to his mother and £50 insurance.  He had no savings.  When he had been to Greece three weeks before he had brought back 60 pouches of Old Holborn tobacco for himself his father and uncle but they had not paid him for those goods.
8.	He said that he had made the trip on 14 June 2003 with Mr John Dawson who had asked him if he wished to go.  The cost of the ticket was £37 and he had sat on the coach with Mr Dawson who was a former landlord of a pub in Ramsbottom.  He had not asked Mr Dawson how much he could buy.  The tobacco was for the Appellant’s use.
9.	The officer told the Appellant that he would seize the goods because he was satisfied that the Appellant was selling goods.  The Appellant refused to sign the officer’s notebook.  The Appellant then said to the officer “if I told you I was selling the goods before then why did you make me have an interview for 30 minutes?”.  
10.	The officer informed the Appellant that he was seizing the goods because the Appellant had previously imported 3 kgs three week’s prior, the Appellant had admitted intending to sell some of the tobacco, and because of the excessive quantity of the tobacco.
11.	The Appellant wrote to the Commissioners on 17 June 2003 that he wished to appeal against the seizure of his tobacco.  He stated that the tobacco was for himself and his family and that he thought he could give some away as gifts and that he had been using his own money.  On 20 June 2003, the Commissioners requested the Appellant to clarify if he was wishing to appeal against the legality of the seizure or requesting the restoration of the seized goods.  The Appellant replied that he was requesting the restoration of the goods.
12.	On 10 July 2003 a review officer confirmed that the goods were not offered for restoration, because of the large quantity of the excise goods, the fact that the Appellant had admitted that payment was to be received for some of the goods from persons who had not travelled, and the officer was not satisfied that the goods were for personal use considering that he had imported 3 kgs of hand rolling tobacco three weeks beforehand.  The Commissioners pointed out that the Appellant could have his case re-reviewed.
13.	On 17 July 2003 the Commissioners received a further letter from the Appellant requesting restoration of his goods.  He stated that he had enough cash on him at the time of his trip to pay for the tobacco and that payment was not provided by a third party.  He stated that he intended to give his father and uncle some of the tobacco as a gift for fathers day.  He stated that he did indeed tell the officer that his uncle would probably give him some money in return, but any such money given to him was not to be in payment for the goods but a small token of appreciation.  He stated that he could not envisage his uncle giving him more than £10.  He stated that he had a close bond with his uncle who had helped to bring him up as a young child when his parents separated when he was three years old.  He had not previously travelled to purchase tobacco, and had only been overseas before on his annual holidays to Greece.  He had volunteered the information about bringing back tobacco from Greece for his father and uncle.  He stated that his father and uncle both smoked the same brand of tobacco as the Appellant.  He denied that he was carrying the tobacco for Mr Dawson or anyone else.  He had never been in trouble before.
14.	On 11 August 2003 the review officer Mr G Crouch carried out a further review of the decision not to restore the tobacco to the Appellant.  The officer considered the information in the notebook of the officer who had stopped the Appellant, the correspondence, and the applicable legislation, and the restoration policy of the Commissioners.  The officer noted that the Appellant at his interview had admitted that he was going to receive money for some of the tobacco from his relatives, and this had been confirmed in correspondence by the Appellant.  The officer stated that when monies are received for excise goods or intended to be received it meant that the goods were deemed to be held for a commercial purpose and the goods were not entitled to any reliefs from UK excise duty.  The officer could see no exceptional or circumstances which would lead him to disapply the Commissioners’ policy of non-restoration.
15.	The Appellant appealed on 24 September 2003.
16.	Prior to the hearing of the appeal the Commissioners served on the Appellant a witness statement from the review officer Mr Crouch together with the information from the notebook of the officer who had stopped the Appellant.  The Appellant had not requested the officers to attend at the hearing, nor did he indicate that he was contesting the officer’s notes.
17.	The Appellant gave evidence at the hearing of the appeal disputing some of the contents of the officer’s notebook.  He said that he told the officer that it had been fathers day and that he would give the tobacco to his uncle and father, and that his uncle would give him some money for it.  He said that the tobacco had cost him £2.55 per pouch and he denied telling the officer that his uncle would give him £2.55 per pouch.  He said that his uncle would have paid him something for the tobacco but that this would not cover the cost of the tobacco.  He said that he had volunteered the information about his previous holiday in Greece.  On 14 June 2003 the intention had been that the Appellant would keep 50 pouches, that 50 pouches were for his father and 50 pouches for his uncle.  He accepted that his was going to get payment from his uncle but not the value of the tobacco.  Although he worked and paid some money to his mother and for insurance, he normally spent the rest of his monthly earnings.  He had no savings left over from his holiday in Greece.  He had now stopped smoking.  He said that his uncle would have paid approximately £30 to him for the part of the tobacco which he was bringing for his uncle.  His father was not to pay him anything at all.  He had not slept all night before being stopped by the officer and had been tired.  He thought that there had been a misunderstanding with the officer.  
18.	Mr Crouch gave evidence that he had taken into account when making his review decision all the information that was before him.  The duty involved for the tobacco was £760 without including VAT.
Decision
19.	We find that the decision of the Commissioners was reasonable and that there has been no error on a point of law by the Commissioners.
20.	On 14 June 2003 the Appellant was returning to the United Kingdom from the continent of Europe when he was stopped at the UK control zone Coquelles France carrying 7.5 kgs of hand rolling tobacco.  He admitted that the tobacco was not all for his own use but that one-third of it was for his use, one-third for his uncle and one-third for his father.  He admitted on a number of occasions in his interview and in correspondence that he intended his uncle to pay him some money for the part of the tobacco which was intended for his uncle.  We find that he did tell the officer at his interview that his intention was to sell one-third of the tobacco to his uncle at £2.55 per pouch.  The Appellant at the hearing has disputed that he told the officer this, but we find that the Appellant did in fact tell the officer this at his interview.  Subsequently in correspondence the Appellant has mentioned that the intention was for him to receive less that this amount from his uncle, and at the hearing of the appeal he stated that he would have received £30 from his uncle.  We find however that throughout the interview and correspondence the Appellant had admitted that he intended to receive some money from his uncle for the tobacco.
21.	Regulation 12 of the Excise Goods Beer and Tobacco Products Regulations 2001 amended by the Excise Goods Beer and Tobacco Products (Amendment) Regulations 2002 states that if the goods in question are transferred to another person for money or monies worth  (including any reimbursement of expenses incurred in connection with obtaining them), or the person holding them intends to make such a transfer, those goods are to be regarded as being held for a commercial purpose.  A traveller is not therefore entitled to relief from duty in those circumstances.  All the goods were liable to forfeiture and liable to be seized by the officer.  The Commissioners may as they see fit restore as they think proper anything forfeited or seized.  We find that the Commissioners acted reasonably in concluding that there were no exceptional circumstances which would justify the restoration of the goods to the Appellant.  We find further that the review officer acted reasonably in reaching his review decision not to restore the goods.  He took into account all the circumstances and the information given to the Commissioners by the Appellant, including his admissions that his family was to pay some money for the goods.  We find that the Commissioners have satisfied the onus of proving that the goods were held for a commercial purpose.
22.	We find that the decision not to restore the goods was in line with the Commissioners’ publicly stated policy and was a reasonable exercise by the Commissioners of their discretion.  The decisions of the Commissioners were reasonably arrived at, they have not acted in a way that no reasonable panel of Commissioners could have acted, they have not taken into account irrelevant matters or disregarded something to which they should have given weight, and have made no error in law.
23.	The appeal is dismissed.  The Commissioners did not apply for costs and we make no order as to costs.

MR I E VELLINS
CHAIRMAN
MAN/03/8159