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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 >> Prosser v Customs and Excise [2004] UKVAT(Excise) E00837 (09 December 2004) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00837.html Cite as: [2004] UKVAT(Excise) E00837, [2004] UKVAT(Excise) E837

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Prosser v Customs and Excise [2004] UKVAT(Excise) E00837 (09 December 2004)

E00837

EXCISE DUTIES — "red" diesel — review carried out following earlier tribunal decision — review officer properly heeding tribunal's findings — appeal dismissed.

MANCHESTER TRIBUNAL CENTRE

MICHAEL PROSSER Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Colin Bishopp (Chairman)

Gillian Pratt

Sitting in public in Manchester on 1 December 2004

The Appellant did not appear and was not represented

Lisa Linklater, counsel, instructed by the solicitor's office of HM Customs and Excise for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION
1. On 21 September 2001, Customs officers visited the Appellant's premises in Stoke on Trent from which he carries on the business of selling ice cream from vans. They tested the fuel contained within the tanks of five vehicles, each of which was shown to contain "red", or rebated, diesel fuel. The Respondents took the view that the Appellant was not entitled to use red diesel in the vehicles and imposed five penalties of £250 each (that is, one for each vehicle) and issued an assessment for the duty which they considered to have been evaded, amounting to £5,866. The Appellant requested a review but none was carried out in the permitted time of 45 days, and the decision to impose the penalties and the assessment were deemed to be upheld.
2. Mr Prosser appealed to this tribunal and his appeal was heard (though not by ourselves) on 30 November 2003. On that occasion, Mr Prosser appeared and represented himself. The appeal was successful, at least in part, in that the tribunal made a number of findings of fact, some in the Appellant's favour, and directed a further review — see (2003) Decision E590. That review was carried out by a senior officer, Brian Rayden, who wrote on 29 January 2004 to Mr Prosser's solicitors setting out his conclusions. He accepted that, in the light of the tribunal's findings, there was a reasonable excuse, so far as two of the vehicles were concerned, for the presence of the red diesel in their tanks and that two of the penalties should be withdrawn. He also re-calculated the assessment, to take account of the tribunal's findings as he interpreted them. The original assessment had been calculated by determining the amount of red diesel purchased by the Appellant over the period assessed, deducting from it the amount accounted for by the Appellant's legitimate use of red diesel (as the Respondents thought it to be – the tribunal identified more) and calculating the duty due on the remaining amount, upon the footing that since no legitimate use had been identified, the Appellant was not entitled to use that quantity of red diesel and must pay the evaded duty. The result was that the aggregate penalty was reduced from £1,250 to £750, and the assessment was reduced from £5,866 to £4,720.
3. Mr Prosser launched a further appeal to the tribunal, and it is this appeal which came before us. Mr Prosser did not attend but it seemed to us that notice of the hearing had been properly given to him and we decided that it was an appropriate case in which we should proceed, in accordance with rule 26 of the Value Added Tax Tribunal Rules 1986 (SI 1986/590). The Respondents were represented by Lisa Linklater of counsel and Mr Rayden was present; although he did not give formal evidence, he made a number of observations of which we have taken account.
4. The grounds upon which Mr Prosser has challenged Mr Rayden's decision are somewhat obscure. We have his notice of appeal, which, as we read it, expresses dissatisfaction more with the tribunal's decision than with Mr Rayden's review. If the former is a correct interpretation, Mr Prosser ought to have brought an appeal against the tribunal's decision in the High Court, since it is not open to us to set aside the earlier tribunal's decision. We have instead treated his appeal as one against Mr Rayden's review. Even so, however, it appears to us that we must measure Mr Rayden's review against the previous tribunal's conclusions. It is not appropriate for us to make different findings of fact – nor indeed could we in the absence of evidence from Mr Prosser. Only if it could be shown that Mr Rayden had failed to heed that decision could it be said that his review was unreasonable. Mr Rayden made the comment, and we are bound to agree, that the previous tribunal's findings of fact are not altogether clear. We are satisfied, however, that he has done his best to respect those findings and to put them into practice. We could detect no particular in which he had disregarded the tribunal's conclusion and in those circumstances, there is no basis on which we could allow a further appeal.
5. We did, however, detect a further arithmetical error in the calculation of the assessment, in that one legitimate use of red diesel, which the officer making the calculation had accepted, was identified but then overlooked when the calculation was made. Mr Rayden undertook to ensure that the assessment was further revised to take account of that error. The appeal, however, is dismissed.

COLIN BISHOPP

CHAIRMAN
Release Date: 9 December 2004

MAN/04/8025