E00820
		EXCISE DUTY— non-restoration of seized vehicle — 60 kg hand-rolling tobacco and 350 cigarillos — Purchased as gift for fellow soldiers from Iraq and friends  — not for own use — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

 
 	
	SEAN ANTHONY ARDON 	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	D S PORTER	  (Chairman)
					Mrs M KOSTICK (Member )

Sitting in public in Manchester on 23rd April 2004

The Appellant in person

Mr Joshua Shields of counsel instructed by Solicitors for Customs and Excise for the  Respondents.

	© CROWN COPYRIGHT 2004

DECISION

1.	This is an appeal by Sean Anthony Ardon (the Appellant) against a decision not to restore excise goods and a vehicle belonging to the Appellant, which were seized by the respondents on 14th July 2003. The vehicle, a Vauxhall Vectra registration P 434 MPP was seized at the Dover Hoverport on his return from France. The Appellant alleged that he had been to Calais to buy the goods for his own use. The Respondents do not believe that the goods were for his own use but that he intended to sell them.
The Parties
2.	Mr J Shield of counsel appeared for the Commissioners, called Mr Bernard Wills as a witness, and produced a bundle of documents for the Tribunal. The Appellant appeared in person.
The Facts
3.	 The Appellant, having recently returned form service in Iraq, wanted to have some time to him self and decided to go to Calais and whilst he was there to buy some hand-rolling tobacco. He had left at 5.00 pm and returned at 9.30 pm. He wanted to thank the people he had served with for their help whilst he was Iraq. The Appellant did not say what that help had been. He had 10 Boxes of Golden Virginia tobacco and stated at the Tribunal that he had planned to give one box each to his six family members, who had not made any payment for them. He planned to give the other 4 to his soldier friends. He had indicated in his interview that they had “chipped in”. The Appellant produced to the meeting letters from members of his family confirming that they had asked him to bring back the boxes. He had been unable to produce any receipts.
4.	Details of the interview are at pages 22 and 23 of the bundle. The Appellant declined to stay for an interview. He said that the customs officer had told him that it was a waste of time for him to stay. He also felt intimidated and he wanted to get home. In subsequent correspondence when asking for the vehicle to be restored he confirmed that he understood he could bring in as many goods as he liked as long as they were for his own use. He had spent £3000 from monies he had saved whilst he had been on active service. Although he was stationed at Dover his girl friend lived in Yorkshire and he drove up every weekend at a cost of  £320 per month and he was still paying for the car that had been seized.
5.	Mr Wills confirmed under oath that he had heard nothing at the Tribunal hearing that would alter his view that the vehicle should not be restored. The Appellant had twenty times the guide line limits of hand-rolling tobacco; he had indicated at the interview when he was stopped that “his mates had chipped in” but in subsequent correspondences indicated that he intended to give 4 boxes to his soldier friends for favours he owed them; he had refused to be interviewed and although he said the receipts for the goods were in the bags none had been found; finally the duty on the goods was £6085 and the vehicle was worth approximately £305o
6.	We find as fact the matters set out in paragraphs 3 to 5 above.
The Law
7.	 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.”
8.	The Commissioners may require the person to satisfy them that the goods are not being held for commercial purposes.
9.	By virtue of The Customs and Excise Management Act 1979 any vehicle, which has been used for the carriage of the goods, is also liable to forfeiture, although the Commissioners may restore the vehicle on such terms as they think proper.
10.	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
11.	Mr Shield submitted that the Respondents had acted reasonably in their refusal to return the vehicle. There were substantial discrepancies in the Appellant’s evidence at the interview, in his correspondence and at the hearing before the Tribunal. It was not credible that the Appellant would give his soldier friends the amount of tobacco he alleges he intended. Even if the Tribunal found that the goods had been acquired “not for profit” the value of the duty lost was twice the value of the vehicle and proportionality would not therefore apply.
12.	Mr Ardon submitted that he was now using a car, which he had purchased very cheaply and was travelling the 500 miles to Yorkshire every weekend in considerable discomfort. He was still paying off the original loan of £9000 for the vehicle, which had been seized.
The Decision
13.	My Colleague and I are satisfied that the reviewing officer’s decision not to restore the Appellant’s vehicle was one a reasonable body of Commissioners could have arrived at. 96,000 cigarettes approximately is a very large quantity. It is not credible that the Appellant would give so many cigarettes to his soldier friends. Soldiers are trained to fight and to look out for each other in war conditions. None of them would expect any of the others to make substantial gifts as alleged by the Appellant. The letters from the Appellants family are not consistent with the original evidence and have clearly been written to assist the Appellant in his appeal to the Tribunal.
14.	The Respondents did not ask for any cost so I award none.

D S PORTER
CHAIRMAN
Release Date: 3 November 2004
MAN/01 /8016