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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 >> Sylvester v Customs and Excise [2004] UKVAT(Excise) E00799 (21 October 2004) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00799.html Cite as: [2004] UKVAT(Excise) E799, [2004] UKVAT(Excise) E00799

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E00799

EXCISE DUTY - goods seized – non-restoration – appeal dismissed.

MANCHESTER TRIBUNAL CENTRE

JACK SYLVESTER Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr R Barlow (Chairman)

Mrs M C Ainsworth (Member)

Sitting in public in Manchester on 9 September 2004.

The appellant was represented by his wife and Mrs J McDonald.

Miss Huyton of counsel for the respondents.

© CROWN COPYRIGHT 2004


 


DECISION

1. The appellant appeals against a decision not to restore to him a motor vehicle seized at Coquelles on 17 August 2001. A request for restoration was made by letter dated 20 August 2001 and an initial refusal was reviewed following a request for a review dated 2 October 2001 but that review was not given until 16 January 2002. The review was out of time and the appeal is accordingly against an assumed confirmation of the earlier decision to refuse restoration.
2. On 17 August 2001 the appellant arrived at Coquelles with two other men travelling in the appellant's Volvo estate car. The other men were Mr Dawson, a friend of the appellant who owns a café or restaurant, and Mr Buckley whom the appellant did not know and who had started working for Mr Dawson as a chef the day before the seizure.
3. The goods seized in total were 18.45 kgs of hand rolling tobacco (HRT), 6940 cigarettes, 150 cigarillos, 15.84 litres of beer, 3 litres of wine and 7.5 litres of spirits and the Volvo.
4. Unfortunately, by the time this appeal was heard Mr Sylvester's health had deteriorated to the extent that he could not attend. The listing had been delayed by his ill health but he has not recovered sufficiently to attend. Mrs Sylvester and Mrs McDonald appeared on his behalf and Mrs Sylvester was able to give evidence to some extent about tobacco consumption in the family but she was not present on the trip to Belgium.
5. Initially Mrs Sylvester suggested that, as an earlier hearing had been adjourned so that a medical report could be considered by Customs and Excise, this appeal should be adjourned. But Miss Huyton said it had never been Customs and Excise's intention to consider a medical report about the appellant's present condition and that their contention is that only his condition at the time of seizure is potentially relevant. Mrs Sylvester then said she wanted the matter to be dealt with and we proceeded with the appeal.
6. Mr Sylvester's notice of appeal appears only to contest the question of the vehicle. It states:

"I need my car for work. I have suffered from bowel cancer and I have a bad leg. I cannot walk far. Please help me through this trauma. I will pay my fine but please let me have my car back. Also I did help customs look at my car when they could not get the seat up."

The wording of the notice therefore appears to be consistent with an admission that the goods were liable to seizure and to be a request for a discretionary restoration.

7. In an undated letter written by the appellant to Customs and Excise he stated that, when visiting Mr Dawson's café he had overheard Mr Dawson planning a trip with his employee and he asked if he could go along. As Mr Dawson had a sports car it was agreed that they would go in the appellant's car.
8. When questioned at Coquelles by Mr Baker, a customs officer who gave evidence, the appellant had said that he had suggested the trip a few weeks before it took place. He said he did not know the lad's name (meaning Mr Buckley) because he had just started at the café. In fact Mr Buckley said he had only started working for Mr Dawson the day before the trip.
9. Mr Baker insisted that his note was a transcript of the interview but we reject that. First, it is too short to account for an interview of 50 minutes. Second, there are several questions that only make sense if other statements have been made which are themselves not in the note. For example, there is a question about why Mr Sylvester had bought tobacco for someone else (apparently Mr Buckley) but no previous mention of that in the interview. However, although the note cannot correctly be called a transcript that is not to say that we have concluded that what is stated in it is inaccurate. It was not suggested that anything directly material to the issue of seizure or the consideration of restoration had been omitted and we concluded that Mr Baker was a careful and reliable witness whose evidence we find to be the truth.
10. The other relevant points on the note of the interview were as follows. Although Mr Sylvester said that some of the cigarettes were for Mr Buckley he could not remember which. Although he admitted he hardly knew Mr Buckley he had paid for his tobacco goods and when asked how he was to be repaid he simply said Mr Buckley would pay him. He said the three travellers were sharing the expenses of the trip which had been about £50 each. He said he had bought two brands of HRT totalling 130 pouches and four brands of cigarettes totalling 3,600. He said he had spent £607.20. He said he smoked anything and that he smoked 30 to 40 cigarettes a day. He said he smoked HRT either by rolling cigarettes or in a pipe. He said the goods he had bought would last over a year. He said that he sometimes gave a packet of cigarettes to people who helped him in his business. He said his earnings were maybe £400 to £500 a month to take home and that he had £7,000 in savings.
11. We should add that Mrs Sylvester did not dispute the notes of what was said but she put it to Mr Baker that Mr Sylvester had disclosed the fact that he was diabetic by asking to go back to the car to get medicine and that he had asked to get his jacket and other personal belongings from the car but that these requests had been refused. Mr Baker said that although Mr Sylvester had not been asked about his medical condition he had not asked to see a doctor and that the normal procedure was that if a car was seized the owner would certainly be allowed to take personal belongings out of it.
12. Clearly it would be deplorable if a passenger who is being questioned is refused permission to obtain medicine and a jacket from his car. Although, in the absence of evidence from Mr Sylvester, we acknowledge that Mrs Sylvester was in a difficult position in trying to establish the facts we reject these suggestions. No such suggestions were made in the undated letter or the notice of appeal and having observed Mr Baker give evidence we do not find it credible that he would have acted in that way.
13. In the undated letter, the appellant stated that he had no intention to resell any of the goods and that he, his wife, his daughters and their partners all smoke and that he only bought one bottle of wine. He said the cigarillos were given free with the other purchases and that he had spent £600. He added that he could not believe that Mr Dawson had not declared his tobacco purchases.
14. We have already noted that the notice of appeal appeared to be consistent with an admission that the goods and the vehicle were liable to seizure. The undated letter contains the following statement: "Looking back on the event I feel used – duped and still find it hard to come to terms …". The letter ends at that point. It is a little difficult to understand why Mr Sylvester would regard himself as having been used if the account put forward on his behalf is true. He also offered to pay a "fine" to get his car back and admitted to being stupid.
15. Although the appeal relates to an assumed confirmation the Commissioners relied upon the same grounds as those contained in the belated review letter and the reviewing officer, Mr Brenton, gave evidence. He referred to a file note of a conversation between one of his colleagues and Mr Sylvester in which the latter offered to pay money to get his car back and admitted that he had done wrong. Normally, if Customs and Excise wish to make specific allegations of that sort they must at least disclose them in advance or call a witness who can speak directly about the fact in question. However, the conversation was on 9 November 2001 so that it pre-dated the belated review and was relevant to it and was referred to in the review letter dated 16 January 2002. That statement was not challenged so we do regard it as relevant to the reasonableness of the decision.
16. Mrs Sylvester gave evidence and where she was speaking about matters of which she had direct knowledge we accept the truth of her evidence. She said that her husband did not have financial difficulties and we accept that indeed we find that he would have been able to afford the cost of tobacco he bought on the trip in question. She said he was a heavy smoker and said that he could smoke 60 cigarettes a day comfortably. We assume that was an estimate and note that he had said 30 to 40 cigarettes a day which Mrs Sylvester said was because, like a heavy drinker, he was reluctant to admit his full consumption. She said other members of the family smoked. She also described her husband's health problems.
17. Mrs Sylvester also talked about the hardship suffered as a result of the seizure of the car. She took exception to the fact that the review officer had taken into account that she had been able to buy a replacement car for the family's use.
18. Mrs Sylvester said that her husband had only admitted doing wrong because he would do so if he had felt he had offended anyone. This was an opinion rather than a fact and we do not regard her evidence as having established that that was what her husband's motive had been when he telephoned Customs and Excise on 9 November 2001. It is not borne out by the notice of appeal or the undated letter. Mrs McDonald agreed that Mr Sylvester had said he had done wrong though she did not say how she knew that. She said he had done so only because he wanted his car back.
19. The main points relied on by Customs and Excise are as follows.
20. It was odd that Mr Buckley joined in the trip at all and especially odd that Mr Sylvester lent him money without knowing him. Mr Buckley had said he did not know how he was going to pay. These facts suggested that Mr Buckley was there to "make up the numbers" by which was meant that the quantity of tobacco goods purchased would not look so suspicious if there were three travellers. We agree that this was a reasonable conclusion from the evidence and that it was relevant for Customs and Excise to take it into account.
21. The HRT was not mentioned when the travellers were first stopped and only came to light when the vehicle was examined. This is a minor point in our view as the tobacco was not concealed.
22. Different brands of tobacco and cigarettes were indicative of a commercial venture. We agree that this was a relevant factor. As Miss Huyton put it, it seemed to be catering for the market place and as she pointed out, in interview, Mr Sylvester did not even claim that he had bought for members of his family.
23. Mr Sylvester admitted he had done wrong which could only sensibly mean that he had admitted commercial smuggling. We agree that that was a reasonable conclusion to draw from his admission and we also add that it appears to be borne out by the wording of the undated letter already referred to and by the absence of any denial of commercial importation in the notice of appeal. The undated letter might well be read as a contention that he was helping someone else ("I feel used – duped") but Mr Sylvester agreed in interview that he knew it was illegal to sell excise goods without paying the duty and so he must have known that helping someone else's venture would be illegal.
24. On the above facts and the case as presented by Customs and Excise we hold the decision not to restore the goods to be wholly reasonable.
25. It was suggested that the hardship suffered by Mr Sylvester was such that it became unreasonable or disproportionate not to restore the goods. Having concluded that the importation was for commercial gain, knowingly undertaken, it is not disproportionate to refuse restoration. As to hardship, the appellant offered to pay some money to get his car back and his family was able to afford a replacement. The issue of hardship could be judged as at the date of seizure, or at the date of the request for restoration, or at latest at the date of review or assumed review. We do not find it necessary to decide which of those dates would be appropriate because there is no reason to think that the situation was different at those points. We certainly do not think it would be appropriate to consider hardship as at the date of the hearing. In our view, any hardship suffered by Mr Sylvester around the time of the importation and seizure is not such as to make it unreasonable for the Commissioners to have taken the view that restoration was not appropriate. Our sympathy for Mr Sylvester's now much worsened health cannot affect that decision.
26. The appeal is dismissed. Neither party sought an award of costs and we make no order.

R BARLOW
CHAIRMAN

Release Date: 21 October 2004

MAN/2001/ 8340.