E00741
17/05/2004 0x xxxx GEOFFREY DUKE Mr M S Johnson (Chairman) Mr J D Kippest Birmingham 13 May Mr H Challis, friend of the Appellant, for the Appellant Mr W Baker, of counsel, instructed bythe Solicitor for Customs and Excise, for the respondents 

	EXCISE DUTY  — restoration of heavy goods vehicle and trailer sought — tractor & trailer held by driver on lease —vehicles restored by Customs to leasing company — driver applied for restoration on basis of being owner of vehicles — review decision upholding refusal to restore to driver on ground that restoration to true owner had already taken place — held that appeal could not be entertained and lacked merit in any event — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

 
 	
	GEOFFREY DUKE	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	 Mr M S Johnson (Chairman) (Chairman)
						 Mr J D Kippest (Member)	

Sitting in public in Birmingham on 13 May 2004

Mr H Challis, friend of the Appellant, for the Appellant

Mr W Baker, of counsel, instructed bythe Solicitor for Customs and Excise, for the respondents

	© CROWN COPYRIGHT 2004

DECISION

1.	In this appeal Mr Geoffrey Duke (“Mr Duke”) is appealing against the adverse review of a decision not to restore to him a heavy goods lorry unit and trailer (“the tractor and trailer”), Registration No R721 RRS, seized from him by the Commissioners of Customs and Excise (“Customs”) in Dover on 6 June 2002, as he was in the course of entering the UK from France.  Mr Duke was driving the tractor and trailer.  The seizure took place because the tractor and trailer were found to be transporting several million cigarettes hidden in boxes falsely described as containing muesli.
2.	Mr Duke was asked to complete a voluntary questionnaire shortly after the seizure.  The questionnaire asked who owned the tractor and trailer.  Mr Duke replied that he and his wife did so.  The questionnaire also asked, were the tractor and trailer leased or financed?  Mr Duke replied that they were financed.
3.	Mr Duke requested restoration of the tractor and trailer by a letter written to Customs dated 13 June 2002.  He was requested to attend for an interview, which took place on 19 August 2002.
4.	By letter dated 22 August 2002 Customs declined to restore the tractor and trailer.  That letter stated, inter alia –

“You have demonstrated clear title to [the tractor and trailer] and on this occasion the vehicle will not be restored as H M Customs and Excise are not satisfied that you are not involved in the smuggling of the goods”.
5.	On 4 September 2002 J & G Euro-International Recovery, Continental Recovery Specialists, wrote a letter to Customs in which they requested the release of the tractor and trailer to their clients Close Asset Finance Ltd (“CAF”) who were stated to be the owners of the tractor and trailer.  The letter forwarded copies of leasing agreements which proved to Customs that, contrary to what Mr Duke had previously indicated, he was the lessee and not the owner of the tractor and trailer.
6.	On 5 September 2002 Mr Duke wrote to Customs requesting a review of the decision not to restore the tractor and trailer to him.
7.	Customs were satisfied that CAF and not Mr Duke owned the tractor and trailer, and that CAF was entitled to restoration under the terms of the leasing agreements, so Customs restored the tractor and trailer to CAF on 25 September 2002.
8.	On 14 October 2002, Mr Carl Penfold, a reviewing officer of Customs, wrote to Mr Duke confirming the original decision not to restore the tractor and trailer to him.  That letter contained the following paragraph – 
“First and foremost, the vehicle cannot be restored to you, because it has been restored to [CAF], as they were entitled to make a claim on the lorry and trailer by virtue of the credit leasing agreements you had taken out with them, which remained outstanding”.

9.	This is an appeal under section 16 of the Finance Act 1994.  In this class of case, the tribunal has limited powers, exercisable only where the tribunal is satisfied that the reviewing officer could not reasonably have arrived at his decision.   
10.	It is clear that the tractor and trailer were never owned by Mr Duke and that they could only have been restored to him with the co-operation of CAF.  That co-operation is not now, and never has been, forthcoming.
11.	At the hearing of this appeal on 13 May 2004, the tribunal was informed by Mr Challis, appearing for Mr Duke, that a conclusive financial settlement was reached between Mr Duke and CAF in or about October 2003.  That settlement did not involve the restoration to Mr Duke of the tractor and trailer.  Presumably these were disposed of by CAF to a third party at some stage after they had been restored by Customs to CAF in 2002.

12.	The notice of appeal in this case is dated 30 October 2002.  None of the grounds of appeal relate to the correctness or otherwise of the tractor and trailer having been restored to CAF in 2002.  It is not now contended that Mr Duke is entitled to possession of the tractor and trailer.  It is accepted that Customs were not in the wrong in restoring them to the true owner as they did.

13.	In our view, this appeal cannot properly be maintained.  There is no basis on which Mr Penfold, as reviewing officer, could reasonably have been required to reverse the original decision of Customs not to restore the tractor and trailer to Mr Duke.  Mr Duke was not, as explained, entitled to them.  Restoration had already properly taken place to the true owner.  That was, as Mr Penfold stated in his letter dated 14 October 2002, his first and foremost reason for refusing restoration to Mr Duke.  Indubitably that was an entirely sensible and sound reason for the decision to which he came, and it was, in our view, utterly conclusive.

14.	We accordingly decide that this appeal must be dismissed, primarily on the ground that it cannot be entertained, but in any event having regard to lack of merit.

15.	We were informed by Mr Baker, counsel appearing for Customs, that he was not instructed to seek an order for costs.  We accordingly make no order in respect of the costs of this appeal.

MR M S JOHNSON (CHAIRMAN)
CHAIRMAN
Release : 04/06/2004
MAN/02/8358