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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 >> Marsden & Michelle Marsden v Customs and Excise [2004] UKVAT(Excise) E00732 (27 May 2004) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00732.html Cite as: [2004] UKVAT(Excise) E732, [2004] UKVAT(Excise) E00732

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EXCISE DUTY — Community traveller – large quantity of excise goods brought to UK control zone – goods and car used for transport seized – restoration refused – deemed decision – seizing officer alleged to have misled traveller – deemed review unreasonable – case remitted for further review – Appellant to raise complaint with the Adjudicator's Office – failure to do so – facts as before – no further evidence deduced by Appellant – Commissioners acted reasonably – appeal dismissed

MANCHESTER TRIBUNAL CENTRE

MICHAEL MARSDEN & MICHELLE MARSDEN Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: D S PORTER (Chairman)

Miss C ROBERTS (Member)

Sitting in public in Manchester on 6th April 2004

No one appearing for the Appellant

Miss M Mayoh of counsel for the Commissioners

© CROWN COPYRIGHT 2004


 


DECISION

1. This is an appeal by Michael Marston and Michelle Marston (the Appellants) against a decision on review of the Commissioners of Customs and Excise (the Commissioners) by letter of 23^rd June 2003 pursuant to a decision of Colin Bishopp dated 10^th July 2003 not to restore to them 1000 cigarettes; 50 cigarillos; 15 kg hand rolling tobacco; 3 bottles of spirits; 40.5 Litres of wine and 360 Litres of Beer seized on 8^th September 2001. They claimed to have imported the goods for their own use. The Commissioners claim that the excise goods were held for commercial purposes and were liable to duty in the UK.

The Parties

2. Miss M Mayoh of counsel appeared for the Commissioners and called Richard Truscott the Reviewing Officer, and produced a bundle of documents for the Tribunal. As no one appearing for the Appellants this Tribunal determined to proceed under rule 26(2) of the Value Added Tax Rules 1986 (as amended).

The Facts

3. The facts are set out in the first decision of Colin Bishopp dated the 10^th July 2003, which decision is attached to this decision.
4. Mr Bishopp had allowed the Appellants appeal in the first decision because he was concerned that the Appellants had alleged that they had been misled by the Interviewing Officer, to such an extent that if the facts giving rise to the Appellants being misled were pursued by way of a complaint, a review might lead to the goods and car being restored.
5. In his letter of the 23^rd June2003 Mr Truscott confirmed that the reason given by Mr Bishopp for his original review being unreasonable was that Mr Truscott may not have taken into account all the facts of this case, namely, that in evidence Mr Marston senior and the Appellants stated that half the hand-rolling tobacco imported was to have been a gift to Mr Marston senior. When the Appellants had been asked why this had not been disclosed,the Appellants made a number of serious allegations against the Interviewing Officer and they indicated that they intended to lodge a complaint with Customs and ultimately with the Adjudicator.
6. It was agreed that the outcome of the complaint would form an integral part of the further review directed by Mr Bishopp
7. Prior to the second review letter of 3^rd September 2003, the Appellants had spoken with Mr Truscott by telephone and advised him that they had been advised not to raise a complaint but to await the outcome of his further review. It is clear that the Appellants received the second review letter of 3^rd September 2003 as they lodged a further appeal, namely this one, by a notice dated 26^th September 2003. In their notice they appealed on the grounds that Customs had no evidence to say that the Appellants were going to sell the tobacco/ alcohol and Customs did not believe the Appellants explanation. The seizure of their car at the time caused them financial hardship. Restoration should have been granted as Customs had no evidence that the goods were bought for re-sale and they chose not to believe them. Customs did not take into account that this was their first trip to France.
8. As the Appellants had not raised a complaint, the facts remained the same as at the first hearing. The Appellants had not appeared at this appeal and the reasons for the refusal were given again by Mr Truscott namely:-

a. The evidence given at the first hearing by the Appellants and Mr Marsden senior that the excise goods were a gift to their father, as a gesture of thanks for work done on the Appellants' House had not been previously introduced. It was not mention in the first request for restoration in their letter of 11^th September 2001; or in the letter seeking a review on the 8th October 2001; nor was it mentioned in the Tribunal appeal form. It could not therefore have been a matter that he could have consider in his first review letter in January 2002

b. Whilst there may or may not have been duress during the interview there could not have been duress at the time of the subsequent letters. In those the Appellants claimed that the goods were for their personal consumption.

c. Since there has been no complaint, the integrity of the Officer's statement and his note book remain sound

d. Over the 56 days since the first decision no evidence has been forth coming as to the basis of the complaint and as a result Mr Truscott could only rely on the evidence before him

9. We find as fact the matters set out in paragraphs 3 to 7 above.

The Law

10. 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.

11. 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

12. Miss M Mayoh submitted that as the Appellants had not raised any complaint had not responded to Mr Truscott's letter of 23^rd June 2003 nor attended this hearing today, she could only conclude that the Appellants were not going to produce any further evidence because they had none to produce. In those circumstances Mt Truscott had acted reasonably in not restoring either the goods or the car. In the circumstances the appeal should be dismissed
13. The Decision

My colleague and I see no merit in rehearing the evidence as identified by Mr Bishopp. The only matter at issue was the complaint to be raised by the Appellants, which might, or might not, have altered the view of both the Reviewing Officer and this Tribunal. As the complaint has not and apparently is not to be pursued we have to rely on the fact available from the first hearing. Whilst we did not have the opportunity of considering the demeanour of the Appellants we find ourselves in some difficulty as to the veracity of their statements since they did not follow the action recommended by Mr Bishopp and they failed to come to this hearing. In the circumstances we have no alternative but to find that the Respondents have acted reasonably in not returning the goods and the car.

14. We award costs of £500 to the Commissioners as the Appellants had neither attended the hearing nor advised that they would not be attending.

D S PORTER

CHAIRMAN

Release Date:

MAN/02/8199