04/05 

	EXCISE GOODS — traveller stopped with minimum indicative limit of cigarettes in his possession — claims that no recent trip had been made untrue — three trips made in course of one weekend — goods seized and restoration refused — whether refusal upheld on review reasonable — yes — appeal dismissed.

MANCHESTER TRIBUNAL CENTRE

 
 	
	JOHN CHARLES ARNOLD	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	Colin Bishopp (Chairman)
						 Mrs M P Kostick FCA ATII (Member)	

Sitting in public in Manchester on 29 April 2004

The appellant did not appear and was not represented

Joshua Shields of counsel, instructed by the Solicitor for Customs and Excise, for the respondents

	© CROWN COPYRIGHT 2004

DECISION

1.	This is the appeal of John Charles Arnold against the refusal of  Commissioners, upheld on a review conducted by Raymond Brenton, to restore to him 6 kgs of hand rolling tobacco, 16,000 cigarettes and 4 litres of spirits which had been seized from him on 8 June 2003.   Mr Brenton’s decision is set out in a letter dated 9 September 2003.
2.	Mr Arnold did not attend the hearing and he was not represented.   His wife had, however, previously written to the tribunal to indicate that her husband would not be able to attend, because of acute ill health, and she asked us to hear the case in Mr Arnold’s absence.  Joshua Shields of counsel, who appeared for the respondents, made the same request and we considered it appropriate we should deal with the matter in that fashion.   We had brief evidence from Mr Brenton which merely confirmed the contents of his letter and of a short statement which he had prepared and which was included in the bundle of documents produced by Mr Shields.
3.	Mr Arnold arrived at Dover on cross-Channel ferry, on which he had travelled as a foot passenger with one of his grandchildren, on 8 June 2003 and was stopped by a Customs officer, Mr M West.    It did not emerge why Mr Arnold had been stopped, but in view of the circumstances we are about to relate it is probably not difficult to guess.   Mr Arnold is recorded by Mr West’s notes, which he has not challenged, to have said that he had made a return trip across the Channel, in order to buy the 3200 cigarettes he then had in his possession, and that he had last travelled across the Channel about two months previously.  He was intending to return to his home in Liverpool by car, having left his car in an adjacent car park.  He had, he said, travelled from Liverpool on the previous day and had stayed overnight in a hotel before making the trip.   Mr West then indicated that he wished to see inside Mr Arnold’s car and at that point Mr Arnold conceded that he had in fact travelled across the Channel three times during the weekend, on two of those occasions with his wife, and had bought excise goods on each occasion.  A search of the car revealed that (including the cigarettes Mr Arnold had with him when he was stopped) it contained the quantities which we have already mentioned.   All of the excise goods were seized but, in view of Mr Arnold’s acute medical condition, the car was not and he was allowed to travel back to Liverpool in it.
4.	Mr West took the view that the substantial quantity of the goods, coupled with Mr Arnold’s untruthfulness, indicated that he had bought the goods, and was bringing them into the country, for commercial purposes, that is for resale, and that they were consequently liable to forfeiture.   It was for that reason he seized them.   Mr Arnold’s claim is that the goods were in fact for his and his wife’s own use.   Neither the officer first refusing to restore the goods nor Mr Brenton accepted that claim but were instead of the view that this was a commercial importation, relying upon the same reasons as had influenced Mr West.   As Mr Brenton pointed out in his evidence to us, if Mr Arnold and his wife had made one trip, buying all of the goods which were ultimately found in their possession, and had made an honest declaration to any Customs officer who might have stopped them, their story could well have been believable.  It was, he thought, clear from the manner in which Mr Arnold had conducted himself that he was setting out to deceive.  No exceptional circumstances had been shown which might justify the Commissioners in departing from their normal practice of seizing and not restoring excise goods brought illicitly into the country (a policy which has been approved by the courts) and there were consequently no grounds on which he could properly restore the goods.
5.	The jurisdiction of this tribunal is conferred on it by section 16(4) of the Finance Act 1994 and is very limited.   We can allow the appeal only if we are satisfied that Mr Brenton’s decision was one at which he could not reasonably have arrived.  In this case we have no doubt at all that his decision was not merely reasonable but inevitable.  Those who lie to the Commissioners can scarcely complain when what they subsequently say is treated with scepticism. The appeal is dismissed.
6.	In cases of this kind the Commissioners do not ordinarily ask for costs if they win but in this instance Mr Shields did ask for a direction that Mr Arnold should pay their costs on the ground that the appeal was frivolous.  We agree;  it could not possibly succeed.  We accordingly direct that Mr Arnold shall pay the Commissioners’ costs, which we assess at £60, by 30 June 2004.

COLIN BISHOPP
CHAIRMAN
Release date:
MAN/04/8176