RESTORATION — return trip in Transit Van - use of freight lane at customs — 40th birthday and christening — in spite of festivities goods excessive— commercial purchase — Commissioners acted reasonably —appeal dismissed.
MANCHESTER TRIBUNAL CENTRE

              RAYMOND KNOWLES  	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	D S PORTER	  (Chairman)
						C B H Gill Member

Sitting in public in Manchester on 31st  October 2003 

The Appellant in person

Mr A Vinson of counsel for the Commissioners

© CROWN COPYRIGHT 2003

DECISION

1.	This is an appeal by Raymond Knowles (the Appellant) against a decision on review of the Commissioners of Customs and Excise (the Commissioners) by letter of 19th September 2002 not to restore to him 120 cases of Stella Lager; 10 cases of Carling Lager; 1600 Regal cigarettes; 200 Lambert and Butler cigarettes; 200 Silk Cut cigarettes; and his transit van number J897 GMC seized on 2nd July 2002. He claims to have imported the goods for his own use. The Commissioners claim that the excise goods were held for commercial purposes and were liable to duty in the UK. 
The Parties
2.	Mr A Vinson, of counsel, appeared for the Commissioners and produced a bundle of documents for the Tribunal. The Appellant appeared in person. Mr Seddon his passenger was unable to appear, as he had to go to a funeral.
3.	Mr Vinson was concerned that as Mr Seddon was not present and the Appellant might be in some difficulties because the evidence given by each of them at interview differed. The Appellant confirmed that he was prepared to proceed and did not require the appeal to be adjourned so that Mr Seddon could attend.
The Facts
4.	The Appellant and his friend Mr Seddon had decided to go to Calais to purchase some drinks for the Appellants 40th birthday and for Mr Seddon’s child’s christening party. The Appellant was late getting to the ferry and when he showed his ticket, as he drove on to the boat the number of his vehicle was taken down incorrectly. The Appellant had not noticed, because he was anxious to get on board and was directed to the freight section perhaps because the Appellant and Mr Seddon had been dressed in work-men’s’ overalls.
5.	When the Appellant had board the ferry he went to the department that sold alcoholic drink to enquire how much he could buy. He produced to the Tribunal the P& O  ticket which states:-
“ The world’s favourite spirit brands are to be found on P&O Stena line ships, when you travel Dover to Calais. And there’s no limit on how much you can buy”
6.	The Chairman pointed out that there was a footnote in very small type indicated by the dagger after the word “buy” which reads:-
No limit applies only to purchases for personal consumption
7.	The Appellant stated that he had not read the footnote, but in any event he had purchased the drink for his 40th birthday party and considered that it was for his own use. Mr Seddon had similarly bought his drink for his child’s christening party.
8.	They returned to Dover and after disembarking he was directed to take the van into the left hand lane for commercial vehicles. He was told to pull over into bay no 2 and was asked by an officer what he was carrying. He agreed to be interviewed and he confirmed that he had 100 cases for his 40th Birthday.
9.	He confirmed that half the goods were his and half belonged to Mr Seddon. It later transpired that 80 cases belonged to the Appellant and 50 cases to Mr Seddon the goods had cost £1327.50 and they had paid for their own share. He works for Mannerside Joinery and earns £250 to £280 per week. He said that he had been saving for some time for his 40th birthday.
10.	The interview note at page 3 in the bundle suggested that he had been to Calais to look at a car for himself, which would have cost about £5000. We are satisfied that the reference to the car related to a trip he had made some two weeks before when he had brought back eight to ten cases of wine.
11.	The Appellant alleged that he had signed the interview notes in a hurry and had not read them properly. It was, however, clear from the evidence and the interview note that he had initialled alterations throughout the note on not less than seven occasions.
12.	The Appellant produced to the Tribunal a copy of the invitation to his 40th Birthday (see page 21 in the bundle) and confirmed to the Tribunal that he had had to telephone his friends to say that they couldn’t come to the party because his drink had been confiscated on his return from Calais. He had retained the marquee, as it was too late to cancel it. He had attended Mr Seddon’s child’s christening and although at interview Mr Seddon had said that there were some 30 to 35 people going to the celebration he had meant that they would bring their families. There were about 60 to 65 people at the christening.
13.	The Appellant also confirmed at the interview that he had travelled to Calais on 3 previous occasions and had bought back a small amount of excise goods on each occasion  so that there would be a choice of beverages at his 40th birthday party.
14.	Subsequent to receiving the review letter, the Appellant has written again on 25th September 2002  (see pages 39, 40 and 41 in the bundle) confirming the position as he understood and as now related to the tribunal. The Commissioners responded, as before that the goods would not be restored.
15.	We find as fact the matters set out in paragraphs 4 to 14 above.
The Law
16.	The Excise Duties (Personal Reliefs) Order 1992 as amended at article 3 states:-
“Subject to the provisions of this Order a community traveller entering the United Kingdom shall be relieved from the payment of any duty of excise on excise goods which he has obtained for his own use in the course of cross-border shopping and which he has transported”
“Own Use” is defined in the Order as:-
“Own Use” includes use as a personal gift provided that if the person making the gift receives in consequence any money or money’s worth (including any reimbursements of expenses incurred in connection with obtaining the goods in question) his use shall not be regarded as own use for the purpose of this Order.”
.	The Commissioners may require the person to satisfy them that the goods are not being held for commercial purposes.
17.	By virtue of The Customs and Excise Management Act 1979 any vehicle which has been used for the carriage of the goods is also liable to forfeiture, although the Commissioners may restore the vehicle on such terms as they think proper.
18.	Paragraph 2 of Article 9 of the Council Directive 92/12/EEC provides the criteria which must be taken into account in establishing whether or not the products are intended for commercial use: -
•	The commercial status of the person holding the products, and his reason for holding them
•	The place where the products are located or, if appropriate, the mode of transport used
•	Any documents relating to the products
•	The nature of the products 
•	The quantity of the products
19.	The Appellant did not challenge the Commissioners seizure of the cigarettes and tobacco and by virtue of paragraph 5 of schedule 3 to the Customs and Excise Management Act 1979 they are deemed to be duly condemned as forfeit. The Appellant was therefore deprived of arguing that his goods were for his private use. (see Gora v CEC [2003] EWCA 525). This does not, however, prevent him from arguing for the purposes of these proceedings that the goods were purchased for his own use in seeking a review of the Commissioners refusal to restore the goods to him. (See para 49 of the judgment of Peter Smith in CEC v Dickinson [2003] EWHC 2358 (Ch)
Summing up
20	Mr Vinson submitted that the Commissioners had taken into account the fact that the Appellant was having a 40th Birthday party and that similarly Mr Seddon was having a christening party. The Commissioners also accepted that the mistake with regard to the number of the vehicle was not of the Appellant’s making.
21	The Commissioners were, however, concerned that the answers at the interviews were inconsistent. It appeared that Mr Seddon was dyslexic and had been confused when answering questions put to him at his interview. The quantity of beer purchased would have meant that everybody at the parties would have to have drunk at least 8 litres each, which was not credible.
22	The Appellant had travelled to Calais on four previous occasions and clearly understood how many excise goods he could bring in. 
•	He had been in a white transit van, and come in through the commercial channel dressed in overalls.
•	 There was only one branded of beer namely Stella Lager. 
•	There was sufficient evidence of commerciality. 
•	The Reviewing Officer had acted reasonably in refusing to return the goods. 
21	The Appellant submitted that the goods had been purchased for his 40th birthday party, which was to be an extravagant celebration. On a previous occasion his brother’s car and goods had been seized, when the Appellant was with him, but the car and goods had been returned.
The Decision
22	We are satisfied that the Reviewing Officer properly relied on the information provided to him of the facts giving rise to the forfeiture and acted reasonably in refusing to return the goods. We therefore dismiss the appeal.
23	The Appellant’s evidence both at the interview and before the Tribunal was not credible. We doubt that his friends would not have come to his 40th birthday party if he had suggested that they brought their own drink, as his had been confiscated. The quantity of drink purchased was out of all proportion to that which would have been needed for the 40th birthday party and the christening. We do not believe the suggestion that any unopened bottles of alcohol from either or both parties could be used for Christmas celebrations. We are satisfied that the Appellant purchased the goods for commercial purposes
24	The Commissioners made no application for costs so we award none. 

D S PORTER
CHAIRMAN
Release Date:

MAN/02/8288