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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 >> Harrison v Revenue & Customs [2005] UKVAT(Excise) E00904 (2 September 2005) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2005/E00904.html Cite as: [2005] UKVAT(Excise) E904, [2005] UKVAT(Excise) E00904

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EO00904

EXCISE DUTY — non-restoration of seized vehicle and goods — goods within recommended guide lines — several trips abroad — appellant alleged the interview was not taken contemporaneously — case adjourned — evidence given by interviewing officer at adjourned hearing — interview notes were contemporaneous — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

COLIN HARRISON Appellant

- and -

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: David S Porter (Chairman)

J T Brian Strangward

Sitting in public in Birmingham on 5 January 2005 and 29 June 2005

The Appellant appeared in person

Mr Ben Mills of counsel instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2005


 


DECISION
1. This is an appeal by Colin Harrison (the Appellant) against a decision contained in a letter dated 22 July 2004 from Customs not to restore his excise goods and his vehicle, which were seized by the commissioners on 22 April 2004 at the Dover Hoverport Terminal on his return from Belgium. The Appellant says that he bought the goods for himself. The Respondents say that the goods were bought for commercial purposes as he had been abroad on several occasions previously.
2. Ben Mills of counsel appeared for Customs at the hearings. He produced a bundle of documents for the Tribunal. The Appellant appeared in person and produced a statement.
3. We find the following facts. The appellant decided to take a holiday at St Margaret's in Kent where he stayed with a friend. During the week he was there, he travelled abroad each day with the exception of Sunday 18 April he purchased cigars on 3 occasions, prior to the trip on 22 April 2004 when he was stopped by Customs. On his return on that day Timothy Little a customs officer stopped him at the Dover Hoverport Terminal. The Appellant alleged prior to the formal interview that the officer discussed all the Appellant's previous trips, the quantity of goods he had bought and the times he had been stopped. The Appellant readily agreed to an interview as he had only purchased 2000 cigarettes, 3 kilo of hand-rolling tobacco, 173 cigars, 2.8 litres of whiskey and 5 litres of wine, all of which were within the recommended guide lines. The Appellant smokes a pouch of tobacco each day and some 50 cigars in a weekend. The goods were for his own use, although some of the cigarettes were for his female friend. He had saved for the trip out of his state pension of £102 - £105 per week.
4. The Appellant alleged that Mr Little attempted to re-create the earlier discussions with the Appellant at the formal interview. The interview notes were not taken contemporaneously but were an attempt by Mr Little to write down in the correct order the details given prior to the interview. The Appellant produced to the first tribunal his version of the interview, which he had prepared when he returned home. He conceded that he had amended his first draft in the light of the interview notes he received from Customs for the hearing. The Appellant's version of the facts appeared to confirm that the interview had not been contemporaneous. Since Mr Little had not attended the hearing the appeal hearing was adjourned and a direction given by the chairman that Mr Little should attend at the adjourned hearing so that the tribunal could consider whether the interview notes had been taken contemporaneously.
5. Mr Little attended the adjourned hearing and confirmed that he had first spoken to the Appellant when he had been asked to pull in to the parking area at Dover Hoverport. He had spoken to the Appellant at the window to his vehicle he had asked for the Appellant's passport; confirmed that he had come from Belgium, that he bought ten sleeves of cigarettes and six packs of tobacco and that the car belonged to the Appellant. He asked the Appellant to get out of the car and open the boot. The Appellant may at that time have told him that he had been over to the continent every day that week because he was on holiday, but Mr Little could not be sure of this. After he had seen in the car he asked the Appellant to stay for an interview.
6. Mr Little was certain that he had made enquiries both as to the character of the Appellant and his previous trips but he was unsure whether this was before or during the formal interview. The Appellant alleged that it was during the second interview. The Appellant also alleged that Mr Little was accompanied throughout the interview by Robert Lee who had signed the interview notes as a witness. Mr Little thought that this was unlikely.
7. The Appellant produced to the tribunal a further version of the interview as he now understood it. This version had been updated in the light of the information in Mr Little's statement. The tribunal went through the note in some detail. We are satisfied from the demeanour of and evidence given by Mr Little that his version of the facts as set out in the interview notes is correct. The Appellant conceded that he had signed the interview notes as being correct. The only differences revolved around the various dates that the Appellant stated he had been abroad. The Appellant confirmed to the tribunal that in addition to the weeks holiday trips he had also been abroad on 22 May 2002 and 14 February 2005 and on both of those occasions he had had goods seized.
8. Mr Mills submitted, as a preliminary matter, that this Tribunal cannot consider whether the goods have been purchased by the Appellant for his own use because there has been a deemed forfeiture arising from the Appellant's failure to bring condemnation proceedings. (See paragraph 5 schedule 3 of the Customs and Excise Management Act 1979). He referred to Barry Gasgoigne V (1) H M Customs and Excise (2) The Chairman of the VAT and Duties Tribunal 2004 EWCA C iv 1162 , and Gora v The Commissioners of Customs and Excise [2003] EWCA 525 as authorities for that contention.. Gora at paragraphs 56-58 makes it clear that the Tribunal does not have the jurisdiction to reconsider the legality of the seizure. To do so would allow a party a choice of fact-finding Tribunals. In Gasgoigne whilst accepting that the findings in Gora were, "in technical terms … obiter" (paragraphs 42-43) the Court had the benefit of argument from leading Counsel on both sides. Buxton LJ observed that, in a deeming case under paragraph 5 schedule 3 of the Customs and Excise Management Act 1979, it may be open to a Tribunal to consider the grounds for seizure and forfeiture. However, this was subject to significant restrictions namely:

a. The Tribunal should first consider whether to allow such issues to be raised and re-determined would be an abuse of process (paragraph 55). This would depend on whether the appellant has had an opportunity to challenge the legality of the seizure such that, not to re-open that issue would infringe his right to a fair trial.

b. The normal English law rules of res judicata.

9. In this case it is not therefore open to the Tribunal to consider whether the goods were purchased by the Appellant for his own use. The mere fact that the Appellant has not sort to challenge the seizure is not sufficient to negate the abuse of process argument (Gasgoyne paragraph 56)
10. This point is consistently raised by Customs in the majority of similar cases. We do not accept that the Appellant cannot raise the issues as to the purchase of the goods for his own use. The advice given to appellants by Customs at the time of the seizure and thereafter is far from clear. The Appellant will have been handed notice 12A, explaining the procedure. Notice 12A stresses the delay and inconvenience of condemnation proceedings without explaining the delay that will occur if there is a request for a review possibly followed by an appeal to the tribunal. He will also have received a letter from Customs asking him to clarify which appeal option he wished to pursue. The letter is far from clear. There are two choices. If the Appellant believes that the items should not have been seized (that is that they had been bought for his own use) he can challenge the seizure. The process takes place in the Magistrates Court and he must raise the issue that he purchased the goods for his own use. The letter does not say which Magistrates Court but the cases are frequently heard at Dover. The request has to be made within one month of the seizure.
11. If the appellant accepts that Customs were legally entitled to seize the goods an appellant can write to the Post Seizure Unit and ask for the items to be restored. In the request for them to be restored it is necessary to provide further evidence and detail of any exceptional circumstances as may exist to support restoration. The fact that the appellant thinks that the goods were purchased for his own use is at this stage irrelevant as the goods will have been deemed forfeit. (See paragraph 5) If restoration is refused then the appellant can ask for a review by Customs. If the review upholds the forfeiture the appellant can appeal to the tribunal. As an alternative the appellant can pursue both of these remedies but Customs will not consider restoring the goods until the validity of the seizure has been confirmed by the Magistrates Court. The appellant is advised that if no reply is received then proceedings will be instigated without further notice.

An appellant then has to indicate from the options at the end of the letter which cause he wishes to pursue

Option 1 I confirm that I would like to request the restoration of my goods and/or the vehicle.

Option 2 I confirm that I would like to challenge the validity of the seizure. I am aware this will involve court proceedings.

12. It is unclear from the letter that the appellant can only allege that the goods were bought for his own use in the Magistrates Court. We are sure that the majority of appellants will say that they want their goods back and they are likely to sign option 1. In so doing an application will not be made to the Magistrates Court. Once one month has passed from the seizure, the goods will be deemed forfeit and the appellant appears not to have the right to argue before the tribunal that he bought the goods for his own use.
13. Buxton LJ in Gasgoyne said:

"54 As it seems to me, for an importer to be completely shut out of the only tribunal before which he has in fact appeared from ventilating matters that are deemed to have been decided against him because of paragraph 5 of Schedule 3 does not adequately enable him to assert his convention rights

55. In my view, therefore, in a case where the deeming provisions under paragraph 5 are applied, the tribunal can reopen these issues; though the tribunal will always have well in mind, considerations of, or similar to, abuse of process in considering whether such issues should in fact be ventilated before it."

14. In our view the only occasions in which it would not be open for an appellant to raise the issue of "own use" would be where either the case has been fully ventilated by an appellant in the Magistrates Court, or the appellant had been advised of the Magistrates Court hearing and had chosen not to attend, with no good reason not to do so.
15. In the present case we have decided that the Appellant can raise the issue that he had purchased the goods for his own use.
16. Mr Mills further submits that the task of the Reviewing Officer was to consider whether there were any mitigating circumstances, which would allow a departure from the Customs policy of non-restoration unless such circumstances were proved. The Reviewing Officer in his review letter of 22 July 2004 considered that the answers given by the Appellant to the officer about his previous trips were entirely without foundation. It was his view that the answers were given for the purpose of deception to conceal the Appellant's wrongdoing. In addition there had been two previous occasions when goods had been seized on 25 May 2002 and 14 February 2004. In the circumstances the appeal should dismissed.
17. Mr Harrison submitted that he had done nothing wrong and that he had only brought in the quantity of goods allowed by the guidelines. The goods were for his own use.
18. We have considered the facts and the submissions and have decided that the Customs Review Officer acted reasonably in refusing to restore the goods and we dismiss the appeal.
19. We had been concerned at the first hearing that the interview notes had not been taken down contemporaneously. Having heard evidence form Mr Little we are satisfied that not only were the interview notes contemporaneous but that the Appellant knew full well that they were. He is no stranger to the workings of Customs in these matters. He has had goods seized from him on two previous occasions. He conceded that he had signed the interview notes as being correct. The only matter, that gave raise to some doubt, were the dates of his various trips. The Appellant agreed when asked by the Chairman with all the dates of his previous trips. We have no doubt that he has been buying the goods with a view to selling them.
20. Customs did not ask for any costs to be awarded and we award none.
D S PORTER
CHAIRMAN Release Date: 2 September 2005

MAN/04/8086