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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 >> England & Anor v Revenue & Customs [2008] UKVAT(Excise) E01143 (22 October 2008) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01143.html Cite as: [2008] UKVAT(Excise) E1143, [2008] UKVAT(Excise) E01143

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E01143

EXCISE DUTY – appellants contested seizure in the Magistrates Court and one of the appealed to the Crown Court – whether abuse of process to contend for non-commercial purpose in restoration proceedings – yes – appeal dismissed

LONDON TRIBUNAL CENTRE

DAVID ENGLAND AND STEPHEN MOORE Appellants

- and -

THE COMMISSIONERS FOR HER MAJESTY'S

REVENUE AND CUSTOMS Respondents

Tribunal: DR JOHN F AVERY JONES CBE (Chairman)

CAROLINE DE ALBUQUERQUE

Sitting in public in London on 20 October 2008

The Appellants did not appear and were not represented

Rupert Jones instructed by the General Counsel and Solicitor to HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2008


 


DECISION

1. Messrs David England and Stephen Moore appeal against the Respondents' ("Customs") refusal on review to restore 6 kilos of hand-rolling tobacco, 396 litres of beer and a Citroen van registration number N316 BVX. The Appellants did not appear, and Customs wee represented by Mr Rupert Jones.
2. We decided to hear the appeal in the Appellants' absence.
3. The excise goods and van were seized at the UK control zone at Coquelles, France on 9 August 2006. The decision not to restore the goods or the van was made in the review letter of 20 October 2006.
4. The Appellants appealed the seizure to the Channel Magistrates Court in Dover. After a hearing on 3 May 2007 at which Mr England gave evidence but which Mr Moore did not attend, the court ordered that the goods were liable to forfeiture as being held for a commercial purpose.
5. Mr England alone appealed to the Crown Court sitting at Maidstone which dismissed the appeal.
6. Since the burden of proof is on the Appellants and they have not appeared it is not necessary for us to rehearse the facts relating to the seizure. Mr Jones contends that regardless of the burden of proof it is an abuse of process for the Appellants to contest that the goods were held for a commercial purpose, which is their sole ground of appeal, in these proceedings. As Buxton LJ said in Gascoyne v Customs and Excise Commissioners [2005] Ch 215:

"46. … I do not think it can have been intended that the importer before the tribunal would have a second bite at the cherry of lawfulness, having failed in the condemnation proceedings, or let them go by default.

47 To the extent that it was argued that the literal provisions of section 152(b) are wide enough to allow such a second bite, I would agree that that is so, but the reason why the importer cannot have that liberty is not because of the terms of the statute, but because of the normal English law rules of res judicata or abuse of process."

7. We decide that it would be an abuse of process to allow the Appellants to dispute the commercial purpose point in these proceedings. Mr England not only contested the seizure in the Magistrates Court but also appealed; Mr Moore could have attended the Magistrates Court. In addition, the Appellants have not discharged the burden of proof and therefore there is no material on which we could find in their favour. We therefore dismiss the appeal.
8. Customs, having warned the Appellants that they would do so, Mr Jones asked for costs. We award Customs the costs of and incidental to the appeal to be determined by a Tribunal Chairman in default of agreement between the parties.

JOHN F AVERY JONES

CHAIRMAN

RELEASE DATE: 22 October 2008

LON/06/8100