E01157

EXCISE DUTY - tobacco – commercial purpose? – yes - restoration refused – reasonable? – yes – appeal dismissed.

MANCHESTER TRIBUNAL CENTRE

MISS D C AND MR DT NORMAN
		Appellant

-and-

             HER MAJESTY’S COMMISSIONERS OF
             REVENUE AND CUSTOMS
			Respondents

Tribunal: Richard Barlow (Chairman)
      Robert Grice (Member)						

Sitting in public in Birmingham on 22 October 2008.

No appearance by the Appellants

Mr James Puzey counsel, instructed by the Solicitor for HM Revenue and Customs for the Respondents 

© CROWN COPYRIGHT 2008

DECISION

1.	This appeal is against a review decision given on 12 February 2008 in response to the appellants’ joint request to the Commissioners, made on 25 January 2008, asking them to review decisions by the Commissioners refusing to restore to the appellants tobacco products seized as liable to forfeiture at Coquelles on 21 July 2007.  The goods in question are 2,400 cigarettes and half a kilogram of hand rolling tobacco in the case of Miss Norman and 3000 cigarettes and three kilograms of hand rolling tobacco in the case of Mr Norman.

2.	This is not a mitigation appeal to which rule 30(8) of the VAT Tribunal Rules 1986 applies because the appellants asserted in their notice of appeal that the goods were not liable to forfeiture as they were for their own use.  The tribunal must therefore give its decision in writing in full but the burden of proof is on the appellants and they have not discharged that burden because they have not appeared or sent a representative or otherwise produced any evidence. 

3.	We have considered the appeal in the absence of the appellants under rule 26(2) of the Rules.

4.	Our decision is that the appeal must be dismissed.  When the appellants were stopped at Coquelles and questioned by the respondents’ officers they explained their financial circumstances and it appeared that they would not have been able to afford to smoke the quantity of tobacco products they claimed to smoke in the time they said the seized goods would last.  In particular Mr Norman’s expenditure on tobacco, as claimed by him, actually exceeded his income.  Miss Norman admitted that she had deliberately understated the amount of tobacco she had with her when first questioned.  Mr Norman also admitted that he normally bought tobacco in public houses at prices which we infer suggest that it was smuggled tobacco. 

5.	Without satisfactory evidence from the appellants to explain those facts and without any evidence to substantiate their claim that the goods were for their own use we have no hesitation in holding that the Commissioners’ decision to refuse to restore the goods was entirely reasonable and the appeal is dismissed.

6.	Mr Puzey did not apply for costs and we make no order.

Richard Barlow
CHAIRMAN

Release date: 11 December 2008

MAN/2008/8024