E01114

Excise Duty – cross border shopping – tobacco products 15 kg of hand rolling tobacco – whether held for commercial purpose – yes.

EDINBURGH TRIBUNAL CENTRE

	ROBERT FINDLAY	Appellant

	- and -

	THE COMMISSIONERS FOR 
	HER MAJESTY’S REVENUE & CUSTOMS	       Respondents

			Tribunal:	 (Chairman):  T Gordon Coutts, QC

Sitting in Aberdeen Sheriff Court on Tuesday 27 May 2008

for the Appellant		Robert Findlay

for the Respondents	Josh Shields, Counsel

© CROWN COPYRIGHT 2008.

DECISION

Introductory
Mr Findlay and his colleague Mr Taylor set out from Aberdeen in Mr Findlay’s recently acquired vehicle registration S431 MRS to France to purchase excise goods.  Their journey was unfortunate.  Not only was there trouble with the vehicle but they missed the ferry, lost their way in foreign parts and eventually found a not particularly cheap source for 27.5 kg of hand rolling tobacco and 6140 cigarettes.  They paid cash and obtained receipts; so far as Mr Findlay was concerned he had a receipt for 15 kg of hand rolling tobacco.

The vehicle was stopped at Dover.  The Appellant he admits was the worse for drink, his companion had also been drinking but on being breathalysed was found to be below the prescribed limit.  He was however arrested and the reason for that was that he had an unpaid fine.

The Appellant and Mr Taylor returned the following day for interview and the notes of that interview were taken and signed by them.  On that day Mr Taylor was aggressive but the Appellant gave an account of his travel, his smoking habits and made the assertion that the tobacco products were for himself and his family.  He said that they had given him certain money but would square up more when he returned.

Initially the purchase of the hand rolling tobacco was not disclosed by either of the travellers.  That was discovered on a search of the vehicle under a cover.  The Appellant said that he was not aware of what Mr Taylor had said to the officers and therefore he asserted, according to his evidence before the Tribunal, that he did not actively participate in concealment of the purchase.

The purchase of the excise goods was made in cash.  Mr Findlay has not worked since 2005 and had a weekly income of £79.  He said that he did not intend to sell the tobacco goods outwith his family.

Condemnation Proceedings
The Appellant caused condemnation proceedings to be commenced and he was advised of that by letter dated 1 November 2007.  However he withdrew from those proceedings and sought restoration of the goods by letter dated 5 November 2007.  He explained to the Tribunal with some emphasis that he did not intend to travel to the South of England for such proceedings.  Although he did not say so the impression gained by the Tribunal was that he felt that he might be throwing good money after bad.

The Review
The Appellant had sought a review of the refusal by HMRC to restore the goods.  That review was conducted by Helen Belinda Perkins a higher officer of HMRC based in Plymouth on 15 January 2008; she upheld the decision not to restore the goods.

She had before her a copy of the notebooks of relevant officers’ who were involved in interviews and seizure of the goods; letters from Mr Findlay appealing against seizure; withdrawing from condemnation proceedings and seeking restoration.  Additionally she had 4 statements, from Mrs Findlay and her 3 children, in support of Mr Findlay’s account that some of the tobacco products were to be for them on payment of costs.

The review decision set out clearly and at length the matters before the officer and of which she took account.  On examination by the Tribunal it seemed that the only matter which might be doubtful was the precise circumstances of the concealment of the tobacco in the vehicle and by whom.  Nonetheless Messrs Findlay and Taylor were in the enterprise together.

Shortly put the officer was satisfied that the goods were held for a commercial purpose within the meaning of the legislation; that the quantities were significantly in excess of guideline quantities and that payment was to be made to the Appellant for his importation albeit on a not for profit basis.  The officer also concluded that the account given of tobacco consumption by the Appellant was not credible and that further weighed with her in her decision to refuse the sought for restoration.

The Tribunals Jurisdiction
Whatever ones views may be of the result of the decided cases there is no doubt that following HMRC v Albert Charles Smith the decision of Mr Justice Lewison on 17 November 2005 in which he helpfully summarises and considers the Court of Appeal cases Gora 2003 3WLR 160 and Gascoigne 2005 2WLR 222, that the Tribunal has limited jurisdiction.

The Tribunal requires to consider in a case that had reached the present stage before the review officer whether the decision of the officer was one at which no reasonable officer acting reasonably could have arrived.  

The officer gave evidence but nothing turned on that.  All relevant matters could be determined on the documentary evidence before the Tribunal and it is plain that, however disagreeable to the Appellant the decision made was, it could not be categorised in the whole circumstances as one which no reasonable officer could have arrived at.  Accordingly it must stand.

Decision
The Decision of the Tribunal is that the appeal for the reasons above stated fails and is dismissed.

T GORDON COUTTS, QC

CHAIRMAN

RELEASE:  28 MAY 2008

EDN/08/8002