EO 00861

	EXCISE DUTIES  — seizure of car and goods at Coquelles — no condemnation proceedings and goods and car deemed to be forfeit — refusal to restore varied on review to conditional offer to restore car — whether decision reasonably arrived at — FA 1994 s 16(4) — traveller concealing two trips — untruthful explanation of these trips at hearing — decision reasonably arrived at — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

 	
	GARY CROZIER	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	 Colin Bishopp (Chairman)
						 Warren Snowdon	

Sitting in public in North Shields on 17 March 2005

The Appellant in person

Emma Piasecki, counsel, instructed by the Solicitor’s office for HM Customs and Excise, for the Respondents 

	© CROWN COPYRIGHT 2005

DECISION

1.	In this appeal, Gary Crozier challenges the refusal of the Respondents to restore to him various excise goods, and their offer to restore to him, on terms, a motor vehicle, all of which were seized from him at the French entrance to the Channel Tunnel, at Coquelles, on 22 March 2001.
2.	Mr Crozier attended the hearing to represent himself, with assistance from his brother, and we heard evidence from him.  The Commissioners were represented by Emma Piasecki of counsel, who called Hilda Marshall, the officer who undertook the review of the original refusal to restore Mr Crozier’s goods and car at all, and varied that decision by offering instead to restore the car (or more accurately to pay compensation of its value, since it had been by then disposed of), less the value of the duty which the Commissioners considered Mr Crozier had sought to evade.  She did so in consequence of a direction made by the tribunal which had allowed an earlier appeal, at the Commissioners’ invitation, without hearing evidence.  In fact, Mrs Marshall’s proposal was modified because Mr Crozier’s car was of very low value.  Another officer offered to pay its value less one fifth of the duty, but even that resulted in an offer to Mr Crozier of net compensation of a little under £75, which he has rejected.
3.	Before we deal with the circumstances of this case, we think we should deal, as briefly as we can, with a point raised by Miss Piasecki.  She pointed out that Mr Crozier had not caused the Commissioners to instigate condemnation proceedings in the magistrates’ court and, consequently, this was deemed to have been a commercial importation; thus we should not hear, or at least heed, Mr Crozier’s evidence and contentions that he had bought the goods for his own use.  That assertion goes too far.  Paragraph 5 of Schedule 3 to the Customs and Excise Management Act 1979, the statutory provision on which Miss Piasecki relied, provides that if notice of claim is not made within one month of the seizure, “the thing in question shall be deemed to have been duly condemned as forfeited”.  It does not follow from that provision that the goods in question must be deemed to have been forfeited for any particular reason.  In this particular case, the goods were forfeited because the Customs officers who dealt with the matter believed that the importation was commercial, but paragraph 5 certainly does not say that the officers’ conclusion is deemed to be correct.  Of course, if the magistrates’ court has made findings of fact, including a finding that the importation was commercial, the tribunal cannot go behind that but where, as here, there have been no such proceedings, it does not seem to us that the provisions of paragraph 5 have any greater effect than to prevent a person in Mr Crozier’s position from challenging the lawfulness of the seizure.  
4.	Miss Piasecki referred us to the judgment of Moses J in Anthony Johnson v Chairman of the VAT and Duties Tribunal and Customs and Excise Commissioners [2005] EWHC 115 but that was a case in which there had been a hearing, and findings of fact were made, in the magistrates’ court.  The learned judge did go on to say “If all someone importing cigarettes such as this does is to persist in saying that they are for personal use, the correct response is to say: ‘You have advanced no grounds whatever for restoration in the exercise of powers under section 152(b) [of the Customs and Excise Management Act 1979]’”.  
5.	With the greatest of respect, we have some reservations about that comment.  First, the judge does not seem to have been referred to what Buxton LJ said in Gascoyne v Customs and Excise Commissioners [2005] 2 WLR 222, especially at [54] and [55].  Secondly, it does not reflect the reality of cases of this kind.
6.	Section 152 confers on the Commissioners the discretion to restore seized goods if they think fit.  Their published policy is to do so only if the traveller can establish exceptional circumstances.  The present chairman has asked those representing Customs, and reviewing officers, on numerous occasions to provide an example of such exceptional circumstances.  None has ever been provided.  Mrs Marshall, when she gave her evidence, said that she would regard it as an exceptional circumstance if she thought that the traveller had not been provided with a proper opportunity of explaining his circumstances when intercepted.  But that is not an exceptional reason for restoring goods which have been lawfully seized; it is a reason for doubting the lawfulness of the seizure.  Mrs Marshall’s letter, written following her review, is typical of such letters, dwelling as it does for several pages on the reasons for the seizure before dealing, very briefly, with the absence of any exceptional reasons for departing from the Commissioners’ normal policy.  The reality is that the only way in which a traveller whose goods have been seized might persuade the Commissioners to restore them to him (the considerations in relation to seized vehicles are rather different) is by satisfying a reviewing officer that in truth the goods were for his own use and that the seizing officer was mistaken; there simply are no other reasons which might lead to restoration.  Accordingly, if Miss Piasecki is right and the tribunal is precluded from hearing any evidence about a traveller’s intended use of seized goods, the tribunal’s jurisdiction, so far as seized goods are concerned, is illusory; in every case in which goods have been condemned, either by magistrates or by the passage of time, the tribunal is forced to dismiss the appeal.  We cannot accept that Parliament can possibly have intended that this should be the case nor, as Buxton LJ explained in Gascoyne, does it satisfy a claimant’s Convention rights.  In those circumstances we did hear, and have considered, Mr Crozier’s evidence.
7.	When he was intercepted at Coquelles on 22 March 2001, he was accompanied by a friend, Thomas Watson.  They had with them 8 kg of hand rolling tobacco, 6,000 cigarettes, 163.5 litres of beer and 50 cigarillos.  Since they were stopped in March 2001, they were required, in accordance with the Excise Duties (Personal Reliefs) Order 1992 (SI 1992/3155) to satisfy the intercepting officers that they were importing the goods for their own use.  As the Commissioners now recognise, that Order did not correctly reflect the provisions of Council Directive (EEC) No 92/12, by placing the onus on the traveller. Mrs Marshall, in that section of her review letter dealing with the seizure, has reconsidered the matter upon the basis that it is for the Commissioners to be satisfied, before seizing goods, that they have been imported for commercial reasons.  In this particular case, however, we are satisfied that the initial application of the incorrect test makes no material difference to the proper outcome.
8.	One of the factors which influenced the officers who decided to seize the goods was their evident belief that Mr Crozier could not realistically have paid for his purchases.  That issue was a matter of some debate before us and we accept that the seizing officer seems to have made rather more of the matter than was warranted. However, we find that the extent of Mr Crozier’s means was not, of itself, a significant factor in Mrs Marshall’s mind when she came to conduct her review, although she did make the point that Mr Crozier appeared to have set out to conceal the fact that he was at the time on sick leave.  Although we share this view, we do not ourselves think this is an important feature of the case.
9.	What we do find to be of significance are the replies Mr Crozier gave, to the officer who interviewed him, about his previous trips.  He was first asked whether he had previously been stopped by Customs, and said that he had been stopped in December 2000. Mr Watson was with him on that occasion and they had with them quantities of goods similar to those in their possession on 22 March.  They were allowed to keep the goods.  He was then asked whether his journey in December was his most recent and he said that it was.  The officer had information, however, that Mr Crozier had travelled, although without being stopped by Customs, in February 2001 and at the beginning of March 2001.  Mr Crozier accepted when he gave his evidence that he had not mentioned those trips at the time because, he said, he thought the officer was asking only about occasions on which he had been stopped.  
10.	We do not accept that evidence.  It appears to us that the officer was quite clearly asking about trips since the occasion in December when Mr Crozier and Mr Watson had been stopped, and we do not consider that there was any reasonable room for misunderstanding.  Mr Crozier was asked in the usual way to sign the officer’s notes as a true record and he did so; the exchange about the earlier trips appears only a few centimetres above his signature.  We have concluded that Mr Crozier admitted to his December trip, realising that Customs, having stopped him, must be aware of it, but he did not admit to the other two trips, falsely believing that Customs were unaware of them.  He told us that, on those two occasions, he had travelled with members of his family and not Mr Watson and on each occasion he had bought only 2,000 cigarettes.  Again, we do not accept that evidence.  Mr Crozier made the point that those living in the North East (he lives in Sunderland) who travel to the continent in order to buy excise goods needed to buy fairly large quantities to make their trips worthwhile, because of the distance they were required to travel.  If that is so, it is difficult to understand why, having bought some excise goods, he did not buy a more substantial quantity.  He told us that he made the further trip on 22 March because he had recovered from the injuries he received in an accident which had kept him off work, and expected to be told by his doctor that he could return to work in the very near future (we observe in passing that in one of his letters, Mr Crozier mentioned that he was on sick leave until July).  He had therefore made the further trip, to buy substantial quantities, because he did not think he would be able to travel again for some time.  The conclusion we have reached is that Mr Crozier did not tell us the full truth about his trips in February and early March 2001 and that in reality he was buying substantial quantities of excise goods on each occasion. 
11.	However, what we believe and disbelieve of Mr Crozier’s evidence is only incidental to the sole issue before us, which is whether Mrs Marshall’s decision was one at which she could not reasonably arrive: see section 16(4) of the Finance Act 1994.  It is only if Mr Crozier persuades us that it was that we may allow the appeal.  In our view, it is quite impossible to say that Mrs Marshall could not reasonably arrive at her conclusion.  She evidently was satisfied that the goods were properly seized and that the importation was, at least in part, commercial — that is to say, the goods were not entirely for Mr Crozier’s own consumption, or to be used by him as genuine gifts.  We agree; as we have indicated, we are satisfied that Mr Crozier attempted to conceal two of his trips and, when he learnt that Customs knew of them, did understate the quantity of goods he bought on those occasions.  Even on his admitted purchases, it would appear that he bought substantially more than he claimed to consume.  We share Mrs Marshall’s view that there is no evident reason why the goods should be restored in this case and we regard her decision to restore the car on terms as generous in principle even if, by reason of the car’s low value, it is not generous in monetary terms.
12.	The appeal is dismissed.  We make no direction in respect of costs.

COLIN BISHOPP
CHAIRMAN
Release Date: 29 March 2005

MAN/04/8060