Shand & Anor v Customs & Excise [2005] UKVAT(Excise) E00892 (29 April 2005)

E00892

Restoration of vehicle – refusal to restore – reasonableness – relevant considerations – appeal refused.

EDINBURGH TRIBUNAL CENTRE

	DAVID AND GILLIAN SHAND	Appellants

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	       Respondents

			Tribunal:	 (Chairman):  T Gordon Coutts, QC
					 (Member):	  Ian M P Condie, CA

Sitting in Edinburgh on Monday 18 April 2005

for the Appellants		Mr David Shand

for the Respondents	Mr Andrew Scott, Shepherd & Wedderburn, WS

© CROWN COPYRIGHT 2005.

DECISION

Background
The Appellants appeal against the decision of the Commissioners contained in a letter of 18 November 2004 upholding, after a review, a decision not to restore a BMW vehicle, registration number R785 GFL, seized on 14 August 2004.  That seizure took place following the attempted importation of 72.45 kilos of hand rolling tobacco and 1000 cigarettes through the Port of Dover.

Background Facts
The Appellant by letter dated 17 August 2004 only sought restoration of the vehicle asserting ownership by Mrs Shand.  On 28 August 2004 a notice of claim and appeal against seizure was sent dated 26 August 2004 in which the seizure of the goods i.e. 72.45 kilos of hand rolling tobacco and 1000 menthol Superking cigarettes together with the vehicle in question was challenged.  On that letter the owner was described as Mr and Mrs Shand.  By letter dated 3 September 2004 Mrs Shand wrote to withdraw the appeal against the seizure including the seizure of “my vehicle”.  As a result the question of any improper seizure of goods was brought to an end and the dispute confined itself to the question of restoration of the vehicle.  The consequence of the withdrawal of the appeal against seizure meant that any assertion that the tobacco goods were for “own use” could no longer be maintained since the seizure was accordingly deemed to be proper.  That proposition is clear from the decisions of the Court of Appeal in Gora [2004] QB93 and Gascoyne [2004] EWCA Civ 1162.   A decision by the post seizure unit dated 17 September 2004 determining not to restore the vehicle, was sent to the Appellants.

The Appellants requested a review of that decision by letter dated 1 October 2004.  The witness Gillian Hurrell an officer of the Respondents, conducted a review and upheld the decision.

Mrs Hurrell in her letter, fourteen pages long, detailed clearly the facts before her, the law she applied and the decision she came to.  It is sufficiently clear not to require to be set out in this decision.  She considered the material before the Commissioners in relation to the events of 14 August together with the representations made then and subsequently to her.  She saw no reason to depart from the Commissioners General Policy that vehicles used for the improper importation of excise goods will not be offered for restoration.  At the discretion of the Commissioners however vehicles may be offered for restoration or restoration on terms, inter alia if the goods were destined for supply on a “not for profit” basis, eg reimbursement, and secondly where the goods were destined for supply for profit providing the quantity of excise goods is small and it is a first occurrence.  

There was no contention that the supply was on a not for profit basis and she determined, correctly in our view, that the quantity of goods was not small.  It was very large.  She went on to consider the difference between the value of the vehicle and the revenue involved.  The retail value of the vehicle was £6,400 with a trade value of £4,650 but the revenue involved was excise duty of £7,718 and VAT of £2,607.  She therefore considered that no question of any lack of proportionality arose.

Mrs Hurrell went on to consider in addition whether the Appellants had produced material which could establish that there was exceptional hardship in refusing restoration.  These considerations are detailed in her letter between pages 12 and 14.  It weighed with her that the Appellants had another vehicle.  That fact had not been mentioned in the original request for restoration.  She considered the difficulties of living in an area where public transport was infrequent and caused difficulties and also problems with the Appellants relatives, including some particular difficulty with Mr Shand’s son by a previous marriage who, it was said, was expecting a visit on the day the seizure took place. 

Mrs Hurrell also noted, however, that during 2004 the Appellants were able to afford trips to Cyprus, Amsterdam and France as well as the trip in question and had spent in excess of £4,000 on excise goods.  The information before her was that Mr Shand had £3,000 of savings and that Mrs Shand’s parents owed him a further £2,000.

Matters in relation to “exceptional hardship”
These also dealt with the indifferent health of Mrs Shand, which it was noted pre-dated the seizure, and Mr Shand’s depression, again pre-dating.  Further domestic difficulties for the Appellants lay in the loss of his employment in Manchester by Mr Shand wholly unconnected with the events at Dover.  That was followed by an unsuccessful claim that he had been constructively dismissed and an alleged inability to take employment in Scotland because he was unable to travel by car.  Buses infrequently pass through the village in which the Appellants live and the first and last buses which stop there would make it difficult to engage in employment in a town any distance away.  However it is within the knowledge of the Tribunal as a matter of geography that Star of Markinch is not particularly distant from Markinch itself which has a railway station and there are main roads crossing Fife upon which other public transport runs.

Mrs Hurrell observed, correctly that seizure of any vehicle inevitably causes hardship but that is part of the deterrent purpose of the legislation.
Decision
The Tribunal considered that there was insufficient material in front of them, nor could they think of any other material, to demonstrate that Mrs Hurrell had not taken into account any matters she should have taken into account or had had regard to matters to which she should not have had regard.  

The jurisdiction of the Tribunal in matters such as this is not appellate but merely supervisory and, even if they had been persuaded that a different result could have been arrived at they would not be entitled to substitute that result for the decision of Mrs Hurrell.  These Tribunals in the current state of the legislation cannot order restoration.

The Tribunal in addition however noted that the journey in question was the second journey within a short space of time in which the Appellants spent a matter of a few hours on the continent travelling by ferry in the very early hours of the morning and returning that same morning.  There could have been no other purpose in the first trip but to acquire some goods by way of cross-border shopping.  So far as the second trip was concerned it was solely and exclusively for the purpose of purchasing tobacco.  Some faint effort was made before the Tribunal despite it not being strictly relevant to demonstrate that the Appellant would have intended to use the quantity he brought back for his own purposes.  At the rate of smoking to which he deponed however the tobacco imported would have lasted over 8 years.  He said that he rolled cigarettes as a hobby and produced several boxes of rolled cigarettes to demonstrate this to the Tribunal.  Unless these were to be smoked or disposed of otherwise that exercise is not only costly but pointless.  

The Appellants had before the Hearing requested the attendance of the Customs officers whose notebooks were produced together with CCTV footage with a view it was said to demonstrating how confused they were.  The Commissioners declined to produce their officers or the CCTV footage, on the correct basis that such would add nothing to the Tribunals consideration limited to the justification or otherwise of the refusal of restoration.

Even if the Tribunal had been minded to recommend restoration that would only have been restoration on condition.  The condition would have been the payment of the evaded duty which would have exceeded the value of the car and, in view of the information about the Appellants financial situation, been unlikely to have been met.

On the whole matter therefore the Tribunal heard nothing to persuade them that the decision taken by the reviewing officer was in any way flawed.  The Tribunal would go further and indicate that the letter sent by Mrs Hurrell was a model of its kind giving as it does the law, the background, the facts of the decision all in clear plain English, even if at length.

The only other factor which should be mentioned is that upon application by the hire purchase company following a letter to them by the Appellants surrendering the vehicle the vehicle was restored to the hire purchase company and the Appellants have been requested to make good the deficiency between the contractual terms of the hire purchase contract and the price recovered by the Finance Company.

The Respondents did not seek expenses in the event of their success.

T GORDON COUTTS, QC

CHAIRMAN

RELEASE:  29 APRIL 2005

EDN/04/8010