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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 >> Burnell v Revenue & Customs [2006] UKVAT(Excise) E00957 (23 May 2006) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2006/E00957.html Cite as: [2006] UKVAT(Excise) E00957, [2006] UKVAT(Excise) E957

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EO00957

EXCISE DUTY – tobacco previously condemned in Magistrates' Court – cannot reconsider whether for own use – on basis that the goods were at least for sale at cost the decision not to restore was reasonable – appeal dismissed

LONDON TRIBUNAL CENTRE

MICHAEL WINTER BURNELL Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY'S

REVENUE AND CUSTOMS Respondents

Tribunal: DR JOHN F AVERY JONES CBE (Chairman)

RANBIR SURI

Sitting in public in London on 19 May 2006

The Appellant in person

Matthew Barnes, counsel, instructed by the Acting Solicitor for HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2006


 


DECISION

1. Mr M W Burnell appeals against a decision on review dated 26 May 2005 not to restore 5,600 cigarettes and 6 kilos of hand-rolling tobacco. The Appellant appeared in person; Customs were represented by Mr Matthew Barnes.
2. Mrs D C Gillespie, the reviewing officer, gave evidence and was cross-examined by the Appellant. We find the following facts:

(1) On 9 March 2005 the Appellant was stopped at Bournemouth airport with 5,600 cigarettes and 6 kilos of hand-rolling tobacco (the guide levels were 3,200 cigarettes and 3 kilos of tobacco) for which he produced receipts for the cost of 1190 euros. There were five different brands of cigarettes and one brand of tobacco. The Appellant produced a list of brands of cigarettes and tobacco with names against them. The excise goods and the suitcase in which they were contained which were seized following an interview with him.

(2) He is recorded as having told the officers that the goods were for his parents and that they would offer to refund what he paid but he probably would not take it. In evidence to us he said that the "probably" related to their offer, not his refusal. We do not need to decide which version is correct. On being asked if his wife and daughter would pay for their cigarettes he is recorded as replying "No—it's trying to get blood out of a stone."

(3) He requested condemnation proceedings which were heard on 10 November 2005 by Magistrates at Bournemouth who found that the excise goods were held for a commercial purpose and condemned them as forfeit.

(4) The Appellant was asked by letter of 28 April 2005 if he wanted any other information to be taken into account by the reviewing officer and he did not reply. In the review letter Mrs Gillespie concluded from the fact that he did not have an open packet of cigarettes or matches or a lighter that he was not a smoker and that he intended to supply the goods to others. On the basis of his limited income of £138 incapacity benefit every two weeks plus £24.95 per week she did not accept that the excise goods were gifts and even if he was to receive the cost of them (which she doubted) they were still excluded from relief.

3. The Tribunal's jurisdiction is contained in section 16 of the Finance Act 1994 which applies to matters contained in Schedule 5 including decisions on restoration. Section 16(4) provides that:

"In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of an appeal tribunal on an appeal under this section shall be confined to a power, where the tribunal are satisfied that the Commissioners or other person making the decision could not reasonably have arrived at it, to do one or more of the following, that is to say—

(a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct;

(b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision;…."

4. The Appellant contended that the goods were for his own use (including gifts). Mr Barnes contended that that issue had been determined by the Magistrates and we had no jurisdiction to reconsider it, citing Gora v Customs and Excise Commissioners [2004] QB 93 at [54-58] and Gascoyne v Customs and Excise Commissioners [2004] EWCA Civ 1162 at [46-56].
5. We agree with Mr Barnes and we must proceed on the basis that the excise goods were at the least for sale at cost to members of his family, but this did not prevent the Appellant from, for example, contending that Mrs Gillespie had taken into account irrelevant matters. The Appellant questioned her on how she had concluded about his income without more information, to which she replied that she took into account what the officers had noted and the Appellant had not provided her with any further information. He put to her that he was in fact a smoker and had given an explanation to the officers about not having an open packed or a lighter. She said that even if she had understood that he was a smoker this would not have changed her decision.
6. Proceeding as we must on the basis that the excise goods were for sale at cost to members of his family, while we might well have accepted, if we had been free to do so, that he was a smoker and that some of the goods were for his own use (we should point out that Mr Barnes did not cross-examine the Appellant on this as he contended that it was not something open to us to decide), we accept that this would not have changed Mrs Gillespie's decision, particularly in view of the list of names with goods opposite them. We consider that her decision was reasonable. She applied Customs' policy and did not see any reason to vary it. We do not think she took into account any irrelevant considerations or failed to take into account relevant ones. Accordingly we dismiss the appeal.
7. The Appellant was unhappy about the proceedings in the Magistrates' Court but we are afraid that this is not a matter that we can take into account. We are sure that there are avenues available for him to raise this if he approaches the Courts service.

JOHN F. AVERY JONES

CHAIRMAN

RELEASE DATE: 23 May 2006

LON/05/8071