E00769
RESTORATION OF EXCISE GOODS — further review — appeal — personal use a relevant issue (Dickinson) — first tribunal's decision not properly taken into account on further review — appeal allowed
MANCHESTER TRIBUNAL CENTRE
ANTHONY EDWARD PURVES Appellant
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: Mrs E Gilliland (Chairman)
Mr C B H Gill (Member)
Sitting in public in Manchester on 21 May 2004
The Appellant appeared in person
Miss M Mayoh, of counsel, instructed by the Solicitor's Office of HM Customs and Excise, for the Respondents
© CROWN COPYRIGHT 2004
DECISION
- The appeal before the tribunal is that of Anthony Edward Purves (the Appellant) against a decision of the Commissioners on review not to restore to the Appellant excise goods comprising 10000 cigarettes (the goods) seized from him at Liverpool Airport on 6 December 2001. In response to the Appellant's query as to why he was again before a tribunal when he had already succeeded in his appeal, the Chairman explained that the decision of the then tribunal subsequent to the first hearing on 18 September 2003 was to allow his appeal and to direct the Commissioners to carry out a further review of their decision in the light of the findings of that first tribunal. Neither that tribunal nor we have power to order restoration. That re-review was conducted by Mrs.Maureen Crook who by letter dated 26 November 2003 exercised her option to confirm the contested decision not to offer restoration of the goods. The Appellant has appealed against that decision also and in the Notice of Appeal, submitted on 23 December 2003, he set out his grounds for doing so as follows: " Statement of witness has been altered since I signed the statement and is incorrect. The goods seized were for my own use and were not for sale. I would like the customs officer present at next hearing". The interviewing officer (Mr. Little) has not attended this second hearing but Counsel for the Commissioners has called three witnesses including Mrs. Crook. All the witnesses have been cross-examined by the Appellant and he also has given evidence on oath.
- In the review letter and in her evidence to us Mrs. Crook has confirmed that she was independent of the previous review and looked at the matter afresh. She had ascertained the background of the matter by reading the file, looking at the request for restoration, the circumstances of seizure (mostly from the notebook) and the correspondence from the Appellant. She had considered the general policy of the Commissioners that seized excise goods are not restored but that each case was examined on its merits to determine whether or not restoration may exceptionally be offered. She concluded that no exceptional circumstances had been established by the Appellant.
- Both in the Notice of Appeal and also at this hearing the Appellant has raised the issue of an addition made to the interview record after he had signed it. The Appellant has stated that he was not asked by the officer for his address, but that an address was inserted that he did not at the time know, though he does now. He thought it possible that it had been obtained by the officer asking another customs officer who had interviewed someone else. The review officer is not here and so cannot be examined on this but we understand that the matter was referred to the complaints team. Mrs. Crook in her evidence has said that the question of the address was not something that she needed to consider even if it had been added later. We are satisfied that it was not a factor material to the review decision and any issue as to the circumstances of the entry is being dealt with elsewhere.
- The first tribunal concluded that the Commissioners had taken into account the importation of goods by a Mr Cairns who was on the same flight as the Appellant which they should have ignored and failed to take into account the requirements of Article 9(2) EC Directive 92/12 which requires member states to take into account (inter alia) five matters in establishing that goods acquired by private individuals and transported by them are intended for commercial purposes; namely the commercial status of the holder of the [goods] and his reasons for holding them; the place where [the goods] are located or, if appropriate, the mode of transport used; any document relating to the [goods]; the nature of the [goods]; the quantity of the [goods]. Accordingly we look to the review letter and the evidence of Mrs. Crook on these points. That tribunal also accepted as a fact that the Appellant had not intended to travel again on 12 December 2001; and also doubted that he had sought to mislead the interviewing officer when he said that he was travelling "on his own".
- The officer has included a separate section in her review letter headed "Matters not relevant to my review" which refer, for example, to the seizure of goods from Mr. Cairns and the interview with him and information from the EasyJet flight records that a Mr. Terence Duffy had paid for a large number of flights some of which were in the name of Anthony Purves. As to Article 9(2) these points were not referred to nor separately and individually dealt with by the officer. In the review letter the officer extracted once more the information obtained from the interview record and the officer's reasons for seizure. The Appellant has again insisted that the goods were brought back for his own use and were thus free of duty in the U.K. He had objected to witness statements and accordingly in addition to the review officer two witnesses called by the Commissioners have attended namely Mr. Leslie Smith the Senior Policy Adviser to Customs and Excise and Ms. Elizabeth Anne Griffiths an officer of Customs and Excise at Manchester Airport. Also before us is the witness statement of Theresa Carol Driscoll. The Commissioners had applied for this witness to be excused from attending as she could not add orally to her statement .We have noted that the information she has supplied is an analysis of the EasyJet computerised booking, confirmation and flight records. Mr Smith has explained the non-restoration policy of the Commissioners and the reasons for it including substantial loss to the Revenue by evasion of duty, damage to legitimate trade and the need for a disincentive. Ms. Griffiths in evidence confirmed that she had seized 4800 cigarettes from the Appellant on 7 April 2001 on his return from Tenerife from where only 200 cigarettes can be imported The Appellant has admitted that that this had happened as he had thought that Tenerife was in Spain and thus in the European Union. He had accepted losing his goods and had since gone to the mainland to buy. He queried how long this would stay on the record and the officer's response was that where it was a "third country" seizure she would probably ignore one after twelve months.
- Counsel for the Commissioners wished to put questions to the Appellant as she considered that he was raising issues and he agreed to cross-examination. She has submitted that although he was aware of the issues from the previous tribunal he had not produced any additional information. She sought to draw attention to inaccuracies in the replies he had given at the time of the interview. She referred him to his reply to the officer's question as to the cigarettes with Spanish markings he had then produced which he had said he had obtained from his wife who had been abroad with his daughter in about April. The Appellant has replied that what he had said was that he might have picked up the packet when he left the house; that he did not know. He agreed that he had not given any information re that trip to the officers. Nor had he provided evidence of the money being drawn from his Bank account to fund his purchase of the goods. On the evidence produced from the airline records of flights on 22 November 2001 and 18 December 2001 for and by Anthony Purves as well as that of 6 December 2001 he denied being on those other flights and his explanation was that "Terry Duffy" must have booked a flight for him and one for his son who had the same name though he did not know if his son used the "h" in Anthony. The Appellant referred to discrepancies in spelling in the records. Ms. Driscoll has not been called as a witness and no explanation has been provided to us by the Commissioners for the discrepancies we have noted on the records. In view of the heightened security at airports, we do not consider it safe to conclude that the Appellant travelled other than on 6 December as he has admitted. The Appellant said he had not asked his son to provide any information as they were his own cigarettes and he did not need to build up a case as he had done nothing wrong. He agreed also that he had not produced evidence that he had repaid the money for his flight to Terry Duffy.
- What Counsel has put to us is that the Appellant provided no further information for the review officer, who could only look at the information she had and there was no evidence of exceptional circumstances. Counsel has submitted also that it was not for Mrs. Crook to consider whether the goods were for personal use and that the tribunal could not make a finding as to the use for which the goods were intended.
- The tribunal in ancillary matters of this nature has to determine whether the decision under appeal is one that could not reasonably be arrived at. The person making the decision must have properly applied the law, taken into account all relevant matters and disregarded those which are irrelevant. We are bound to observe that the review officer has made an error of law and her decision cannot stand for that reason alone. The law was correctly stated by the first tribunal as were the specific points to be reconsidered. The review officer appears to have ignored entirely what the first tribunal said in paragraph 14 of its decision and failed to consider the matters set out in paragraph 15. Mrs Crook states that following a Court of Appeal decision in Gora the Appellant's reason for appeal that the goods were for his own use was not relevant to a request for restoration. This is not a correct statement of the law. Peter Smith J. in The Commissioners of Customs & Excise and Darren Lee Dickinson [2003] EWHC 2358 (Ch) set out the legal position as follows: " I have come to the conclusion that it is open to the [Appellant] in the restoration proceedings to raise the issue of private use for the purposes of seeking to invoke the discretionary procedure of restoration. That does not involve a challenge to the forfeiture, which cannot be done per Gora save in condemnation proceedings. I see nothing difficult in that. First it enables the matter to be dealt with whichever course of action is taken by the person seeking restoration of his goods. Otherwise there would be an injustice. Second of course the procedures are different." (See paragraph 49). The review officer also referred to a number of issues (those she had headed as not relevant to her review) as not relevant because they related to seizure. That is not correct as the same factual background applies in both sets of circumstances and Counsel for the Commissioners acknowledged that as a matter to which the tribunal could refer. The first tribunal found that the Appellant and Mr. Cairns should be treated as independent travellers and for that reason excluded him from the re-review not because the evidence related to seizure only. As we have stated however whilst she refers to the decision of the first tribunal Mrs. Crook has not looked at the factors set out in Article 9(2) EC Directive 92/12. The first tribunal stated that the interviewing officer had taken account only of point 5 and we do not find that in the review letter Mrs. Crook has gone beyond looking at Mr. Little's conclusions. Both Counsel and the officer in her letter appear to have been looking to the Appellant to provide further evidence to satisfy them on the points at issue but the burden of proof on commerciality notwithstanding the appeal remains on the Commissioners.
- We allow the appeal and direct the Commissioners to conduct a further review of their decision not to restore the goods. We would specifically draw to the attention of the Commissioners the need to re-address the Appellant's claim that the goods were for personal use. They must take into account the findings of the previous tribunal as to the law and as to those matters relevant for consideration and have regard to the burden of proof in that it is not for the Appellant to prove that the goods were for personal use but for the Commissioners on the balance of probabilities to establish that the goods were being imported for commercial purposes. The re-review is to be carried out within 30 days of the release of this decision by an officer free from previous operational involvement.
- The issue of costs may at the request of either party be referred back to a tribunal Chairman sitting alone but not prior to the release of the decision of the Commissioners on the further re-review.
MRS E GILLILAND
CHAIRMAN
Release Date 16/07/2004
MAN/04/8004
