02 8089 JOHN MICHAEL GORMAN D S PORTER MRS G PRATT Manchester 20 July 2004 The Appellant appeared in person Miss M Mayoh of counsel, for the Commissioners 

	RESTORATION  — trip to Malaga to buy cigarettes — stopped at Liverpool airport  — 11,200 cigarettes — purchased for him — unemployed previous trips — refusal to restore cigarettes reasonable — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

 
 	
	JOHN MICHAEL GORMAN	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	 D S PORTER (Chairman)
						 MRS G PRATT (Member)	

Sitting in public in Manchester on 20 July 2004 

The Appellant appeared in person

Miss M Mayoh of counsel, for the Commissioners

	© CROWN COPYRIGHT 2004

DECISION

1.	This is an appeal by James Michael Gorman (the Appellant) against the refusal to restore 11,200 cigarettes in a letter dated 22nd March 2002.  Appellant claimed to have imported the goods for his 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, called Mrs J Wiggs as her witness and produced a bundle of documents for the Tribunal.  The Appellant appeared in person.  All the evidence was given on oath.
The Facts
3.	The Appellant lives at 221 Platt Lane Whelley, Wigan.  He is unemployed and is in receipt of £75.00 per week by way of benefits.  He said that he felt at a disadvantage, because he did not have legal representation.  The Chairman assured him that he had no cause for concern and explained that the Tribunal was independent of Customs and Excise and would ensure that there would be a fair hearing.

4.	At the time of the trip to Malaga he was going through an acrimonious divorce. He has a son Johnny, who is 13 years old.  He and his son stay with his mother twice a week.  He was suffering from depression during the divorce and as a result of losing his house.  He seldom goes out and had been able to save about £10 per week.  He goes shopping at Tesco's after 9.00pm as food could be bought much more cheaply then.  He had taken a trip to Malaga to cheer himself up.  He had attended at Liverpool airport and purchased a cheap flight costing him £155.  Miss Wiggs, the witness for the Respondent, doubted that was the cheapest way to get a flight.  Flights could be obtained on the Internet in advance at substantially reduced prices.
5.	When he returned to Liverpool airport he was stopped by Customs and advised the Officers that he had 44 to 46 cartons of cigarettes. He, in fact, had 56.  At the Tribunal the Appellant alleged, for the first time, that the 44 to 46 cartons were in the suitcase, the balance was in his hand luggage.  In his letter to the Respondents received by the Respondents on 4th January 2002, and in the letter of 18th January 2002 from his solicitors McCarty Bennett Holland he alleged that he believed he had 44 to 46 cartons but that he could not have been sure.  He said that he had smoke his last packet of cigarettes when he got on the ‘plane, and as his lighter had run out he had thrown it away.  He allegedly smoked 50 cigarettes per day.  His current partner Angela Richardson had paid for the flight.  He had been 3 to 4 times previously.  His last trip, some twelve months previously, had been with a friend by car with the intention of buying cigarettes.
6.	We find as fact the matters set out in paragraphs 3 to 5 above.
The Law
7.	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.
8.	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
9.	Miss Mayoh submitted that the evidence given by the Appellant to the Tribunal today differed from the evidence given at the time of the seizure and in correspondence thereafter.  It was not credible that the Appellant, who was unemployed and living very cheaply, could afford to take the number of trips that he that he had done on benefit payments.  Further, he clearly had not used the cheapest flight.  It was very unlikely that he could have saved enough money to buy that quantity of goods.  He had no lighter and in spite of being a heavy smoker had not attempted to have a cigarette when he landed. Mrs Wiggs confirmed at the hearing that she had heard nothing new which would make her change her mind.  In the circumstances, as there were no unexceptional circumstances the appeal should be dismissed.  

The Decision
10.	The Appellant submitted that he was an honest man that he had not been well, having been through a divorce and what he had told the Tribunal today was true.  The cigarettes were for his own use and should be restored to him.
11.      My colleague and I have considered the facts in the case and have decided that the appeal should be dismissed.  The Appellant clearly changed his story during the hearing.  Under cross-examination he was less than convincing. We find the evidence not credible for a man who is unemployed and going through a divorce.  We would have expected him to save his money to help him live more comfortably, given that he was at one stage homeless with a young son to care for. 
12.	The Respondents requested no costs, so we award none.

D S PORTER
CHAIRMAN
Release Date:

MAN/02/8089