EXCISE DUTIES – Loan of car by sister to travellers – Cigarettes and tobacco imported in vehicle by brothers – Whether review decision not to restore vehicle except upon payment of value of duty or vehicle was reasonable – Appeal dismissed

MANCHESTER TRIBUNAL CENTRE

	LISA MARIA CARTLIDGE	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	MR I E VELLINS  (Chairman)

Sitting in public in Birmingham on 15 July 2003

Appellant in person

Mr J Puzey of counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2003

DECISION
1.	This is an appeal by the Appellant Ms Lisa Maria Cartlidge against the decision of the Commissioners dated 21 August 2002.  The Appellant’s vehicle had been seized on 5 May 2002.  The Appellant had requested restoration of her vehicle on 7 May 2002.  The Commissioners had refused restoration in a decision made on 17 June 2002.  The Appellant had requested a review of that decision in a letter dated 30 June 2002.  The Commissioners on review had decided not to restore the vehicle except on payment by the Appellant of £4,207.11 being an amount equivalent to 100% of the duty on the excise goods which had been imported by the Appellant’s brothers in the vehicle, or a payment based on the value of the vehicle at the time it was seized whichever was the lesser amount.  The Appellant was not prepared to make such payment for the restoration of her vehicle and appealed by notice of appeal dated 18 September 2002.
2.	At the hearing of this appeal at Birmingham on 15 July 2003 the Appellant represented herself.  The Commissioners were represented by Mr J Puzey, counsel.  
The background
3.	The background to this appeal is that on 5 May 2002 a Rover car registration number R175 EHT belonging to the Appellant was stopped by an officer of the Commissioners at the Dover Eastern Docks. The vehicle was being driven by Mr Stewart Cartlidge, the Appellant’s brother and in the vehicle was a passenger Mr Terence Cartlidge another brother of the Appellant.  The officer Mr W Osborn asked to see the travellers’ passports and the ferry ticket.  The officer asked Stewart Cartlidge where he had been.  Mr Stewart Cartlidge replied that they had been to Luxembourg and that the purpose of their trip was to see about a job as both were Bricklayers.  Mr Stewart Cartlidge said that they had not been anywhere else.  He told the officer that the car belonged to their sister, and that she had owned the vehicle for a few years.  They did not have the registration document of the vehicle with them.  The officer asked them if they had any beer or tobacco with them.  Mr Stewart Cartlidge replied “No”.  The officer asked “So you have nothing at all?”.  Mr Stewart Cartlidge again replied “No”.  The officer asked him to open the boot of the vehicle and at that stage Mr Stewart Cartlidge replied “Yes, actually the boot has got tobacco in it”.  The officer asked how much and Mr Stewart Cartlidge replied that the whole boot was full.  The officer asked him why he had not told the officer that when the officer had asked.  Mr Stewart Cartlidge replied “I had to lie – really”.
4.	The officer asked Mr Stewart Cartlidge if they had all the tobacco in Luxembourg.  Mr Stewart Cartlidge replied that the security had said that they may not be let back into the United Kingdom by Customs – “This is why I lied to you”.
5.	The officer found in the boot of the vehicle 500g of tobacco, 29,980 cigarettes and 2.31 litres of beer.  The goods were in excess of the guidelines, which at that time in relation to cigarettes were 800 cigarettes per person for own use.  The officer read the formal statement relating to commerciality to them, which they both said they understood.  They both declined to stay to be interviewed about the excise goods found in their possession.
6.	The officer seized the excise goods and also the vehicle in which they had been carried for the reasons that the goods were in excess of the guidelines, the travellers had twice failed to declare the quantity of excise goods being imported, the travellers had declined to stay for interview denying the officer the opportunity to determine whether or not the excise goods were being imported for own use, and the vehicle was seized in accordance with section 141 of CEMA.
7.	Mr Stewart Cartlidge had signed the officer’s notebook after the questions had been put to him and he had admitted lying to the officer.  The officer had signed the notebook at the end, after notifying the travellers of the seizure of the goods and vehicle.  The travellers were given a seizure information document in relation to the car and the goods which Mr Stewart Cartlidge signed.  Both were given warning notices which both declined to sign.  The travellers had in their possession six receipts from the premises in Luxembourg dated 4 May 2002 each receipt being in respect of 675 sleeves of Benson & Hedges cigarettes, costing in respect of each receipt £675 euros paid in cash.  They also had their P&O Stena Line ticket in respect of the vehicle and themselves showing that they had travelled from Dover to Calais on 4 May 2002 and returned on 5 May 2002.  The P&O booking had been made by a Lorna Cartlidge on 3 May 2002 in respect of  vehicle and two adults.
8.	On 7 May 2002 the Appellant Lisa Cartlidge wrote to the Commissioners at Dover requesting the restoration of her vehicle.  She stated that she had loaned the vehicle to her two brothers on 4 May 2002 with the sole purpose of them visiting Luxembourg to view and meet a contract manager regarding building work.  She stated that she was not in the vehicle and did not travel with her two brothers.  She stated that as far as she was aware they were to travel to Luxembourg for the meeting and return the same day. She stated that she had since learned that cigarettes were purchased in Luxembourg of which she had no knowledge. She stated that she had been assured by her brothers that it was a decision on the spur of the moment and the goods were purchased solely for their own consumption to last over the coming months. She stated that she ran a small business in Birmingham and found that she had been left with no vehicle which was likely to result in her own business being badly affected because she had decided to help out to people. She stated that she knew that ignorance was not a good excuse but she truly believed that they had no idea that they were not allowed to bring home cigarettes for their own consumption and that there was no question of them passing the goods on to make a profit.
9.	On 17 June 2002 an officer of the Commissioners considered the Appellant’s letter and the factors, but concluded that there were no exceptional circumstances to justify restoration and by letter dated 17 June 2002 the Commissioners refused restoration.  The officer in the letter pointed out that the vehicle have been used for the transportation of excise goods in excess of the guidelines, that her brothers had initially told an officer that they were not carrying any tobacco goods or beer.  The officer stated that her brothers had been invited for an interview to allow them the opportunity to satisfy an officer that the goods were for their own use but both had declined.  The officer stated that the policy of the Commissioners was normally not to refuse to restore vehicles except under exceptional circumstances to protect the revenue and the legitimate trade in the United Kingdom.
10.	On 30 June 2002 the Appellant wrote to the Commissioners asking for a review of the decision not to restore her car.  She stated that she had not been in the vehicle and had not travelled with her two brothers.  She stated that this was the only time that they had used her vehicle to leave the United Kingdom or travelled to Luxembourg and that as far as she had been aware the vehicle was being used to view and meet a contracts manager regarding building work which did happen.  She stated that the loss of her vehicle was damaging her business which was a small employment agency.
11.	On 21 August 2002 a review officer Mr G Crouch wrote to the Appellant stating that he had considered all the circumstances  and representations.  The officer was satisfied that the goods and vehicle were properly seized.  The officer concluded that because of the actions of her brothers her vehicle had been used in the deliberate attempt to improperly import excise goods into the United Kingdom.  The Appellant in her correspondence had stated that her brothers purchased the cigarettes on the spur of the moment.  However the officer pointed out that the cost of the cigarettes to them had been in the region of £2,850 and the officer found it difficult to accept that it was a spur of the moment decision to spend such a large amount of money.  The officer had concluded that he was of the opinion that it was a calculated act on the part of her brothers to spend that sum of money.  He concluded that because of their actions when stopped by the original officer, he could only conclude that the cigarettes were not being imported for own use but for a commercial purpose.  He pointed out that the Appellant was aware that her vehicle was being taken to France for a very short period and given the publicity concerning the improper importation of excise goods into the United Kingdom and the cost to the public purse, she had been taking a considerable risk by allowing her vehicle to be used for such a trip.  The officer stated however that in reaching his decision he had given weight to the difficulties caused by the loss of her vehicle in running her business and exceptionally he had been prepared to vary the original decision.  The officer concluded that he was prepared to offer restoration of the vehicle on payment of £4,207.11 being an amount equivalent to 100% of the duty on the improperly imported excise goods or a payment based on the value of the vehicle at the time it was seized whichever was the lesser amount.  He pointed out that if the Appellant was not satisfied with the outcome of the VAT review she have the right to lodge an appeal to the Tribunal.
12.	The Appellant appealed on 18 September 2002 stating as the grounds of her appeal that “my vehicle was seized after I loaned it to my brothers – I was not in the vehicle.  They were travelling to Luxembourg for work purposes and purchased goods in the process for their own consumption.  I was not travelling in the vehicle”.

Evidence at hearing
13.	At the hearing of this appeal evidence was given on behalf of the Appellant by two witnesses, Mr Stewart Cartlidge, and by the Appellant herself.  A witness statement from the review officer Mr Graham Crouch was submitted by the Commissioners setting out his review decision, the reasons for this, and the documents previously referred to.
14.	Mr Stewart Cartlidge gave evidence at the hearing of this appeal that he lived at an address in Birmingham.  On 4 May 2002 he had borrowed his sister’s vehicle to travel with his brother to Luxembourg.  He said that the sole purpose of the trip was to meet a contracts manager regarding building work as both were Bricklayers.  His intention was to travel to Luxembourg for the meeting and return the same day,  They got to Luxemnbourg on time but there was a delay in meeting the contracts manager so they had time on their hands.  He said that they foolishly decided at that point after looking at the prices to purchase cigarettes for their own consumption.  He said that decision had been made on the day and was purely due to delay in the meeting with the contracts manager.  He said that if it had been his intention to travel to Luxembourg purely to buy cigarettes he would not have been so late for his return ferry.  He said that he was due to travel back on the 9.30pm ferry that did not actually get there until after 1.00am.  He said that on 5 May 2002 while driving his sister’s car he was stopped at the Dover Eastern Docks on his return to the United Kingdom.  The vehicle was stopped and was seized for transporting excise goods that were liable to forfeiture He said that the officer had asked him if he was carrying any tobacco goods or beers and that he had replied no to the officer.  He said that this was an answer he now deeply regretted.  He said that before getting to Calais to travel back to the United Kingdom the Police in Calais had stopped and searched the vehicle.  He said that he and his brother were told by the Police in Calais that there was no way that they would get through the United Kingdom Customs due to the way they treated travellers over there, with that amount of tobacco in the vehicle.  He said that that was the main reason for his dishonesty.  He said that it all happened very quickly and he panicked.  He said that although he had done nothing wrong and merely bought cigarettes for himself and his brother he had no idea what to do at that stage and was unfamiliar with Customs and had panicked under pressure.  He said straightaway he tried to rectify the dishonesty.  He said that he tried to explain to the officer the reason for the lie but that the officer was not interested in listening to him at all and the decision was made immediately to seize the vehicle and he stated that he was not given an opportunity to have an interview. He said that he apologised almost immediately and asked the officer if they could try and sort out the confusion and he said that the officer replied “You could sit there all night but under no circumstances were you getting the goods or the car back”. He claimed that the officer was unfriendly and close to aggressive in manner and he said that there was nothing that he could have done after that to rectify the decision.  He said that he honestly bought the cigarettes with his brother for their own consumption, they had a boot full, and no more.  He said that he was not intending to smuggle and had never smuggled and that he was just trying to get home with the goods purchased for their own consumption after a day that went dreadfully wrong and it was really a nightmare.  He said that the person to suffer was his sister who had tried to help him out by lending him her car and as a result of a stupid reckless lie had been left with no vehicle and was trying to continue to work to run a business in the best way she could.
15.	Mr Stewart Cartlidge said that he and his brother had the amount of the money on them because on the Saturday morning they had picked up their wages at Redditch on the way to Dover and that they had driven on to Dover with their wages on them.  Each had been paid about £1,500 each from that job.  He said that he had not declined to be interviewed by the officer who stopped him but had been told by the officer that there was no way that he would get the vehicle back even if he sat there for days.
16.	In answer to questions from Mr Puzey Mr Cartlidge said that he was not sure when the tickets had been booked.  He said that he had travelled to Europe on many occasions to work as a Bricklayer.  He could not remember how this particular ticket had been paid for as sometimes he booked through a travel agent and sometimes it was done on the Internet and sometimes he paid at the desk in Dover.  He said that he had first asked his sister to borrow her car a few days before because his vehicle had been off the road.  He also said that he had owned a van and it was more comfortable to drive a car.  He said that as he was going to enquire about a job he had not needed the van.  He said that his brother had not owned a vehicle.  He said that he and his brother worked together as Bricklayers.  When Mr Puzey pointed out to him that the booking confirmation had been in the name of Lorna Cartlidge, Mr Cartlidge said that this was his youngest sister.  He said that he had paid her back.  He said that he had no evidence of the source of the £1,500 cash which he had used to purchase his share of the goods except his own word.  He said that the £1,500 represented probably two weeks wages.  He said that he had no proof of the contract that he was claiming to have travelled to Europe to discuss.  He said that he did not take up the job in Luxembourg because it was for a German firm and he had worked for German firms before. 
17.	Mr Cartlidge was asked why he needed to travel to Europe and why he could not have telephoned or contacted the man in Europe by means of the Internet.  Mr Cartlidge replied that he wanted to see the papers and documents which the man in Luxembourg would have.  This man he had met before in Germany.  Mr Puzey queried why Mr Cartlidge and his brother were going all that way when they had no information in writing about the job beforehand.  He said that it was necessary for his brother to go with him because they worked together as a partnership.  He said that he had last travelled to Europe a year before.  He had had a daughter born in May 2001 and had preferred to work in England since then but previously he had worked abroad a couple of times a year.
18.	Mr Cartlidge was asked if he had any cigarettes on him at the hearing.  He replied that he did not have any cigarettes on him at the time but claimed that he had smoked his last cigarette before coming into the Tribunal.  He did have a lighter.
19.	Mr Puzey asked Mr Cartlidge why the cigarettes had not been purchased on one receipt but six separate payments in cash had been made for the purchase of the cigarettes and six receipts had been issued.  Mr Cartlidge replied that the cigarettes had been for himself and his brother and their partners and that they all smoked.  He said that they all smoked Benson & Hedges King Size filters.  He said that he did not know how long the cigarettes would have lasted him.  He said that he smoked 30 cigarettes a day, that his partner smoked 30 cigarettes a day and that one half of the total cigarettes belonged to his brother.  He said that he had never previously bought so many cigarettes.  He said that previously he had only purchased about 2,000 cigarettes when travelling before.  He said that on this occasion he had spent his entire wages on the cigarettes.  He admitted that he had lied to the officer who had stopped him and that he had only owned up when he was asked to open the boot.  He said that he had not declined to stay for an interview.  He said that the officer told him that in no way would he get the vehicle back even if he waited all day.  Mr Cartlidge accepted however that he had never previously challenged the officer’s statement that he had declined to stay for an interview.  He said that he could not remember why he had obtained six receipts for the cigarettes but said that it was not because he was buying for other people.  Mr Puzey put to Mr Cartlidge that the only explanation for obtaining six receipts was that the cigarettes were being obtained for six people.  Mr Cartlidge however could given no explanation for the existence of six receipts for the cigarettes as he said that they were all bought at once.  He accepted that he had never requested the return of his cigarettes from the Commissioners.  He said that he had not reimbursed his sister for the value of  the vehicle but intended to do so if she lost her appeal.
20.	The Appellant gave evidence at the hearing that her brothers had asked if they could borrow her vehicle and they had never done that before. She said that she had not minded. She said that they told her they were going to see a contractor about obtaining work in Europe. She said that she did not know that they were going to do anything wrong. She wanted the return of her vehicle without having to pay.  Although her brothers had lied to the officer when stopped she did not think that they had deliberately done this. She said that they had not explained why they had six receipts for the cigarettes. She said that she smoked Benson & Hedges filtered cigarettes, but not all the family smoked these and she said that her brothers were not bringing back any cigarettes for her.  She said that she had just loaned her brothers the car and did not know that they were going to buy any cigarettes.  She said that she was a single parent bringing up two children on her own would not have risked her vehicle.  She said that she had not asked her brother why he was not going to take his own vehicle.  She said that her car was a diesel vehicle and it was cheaper to go in her car, although her brothers had not given to her that as a reason for borrowing her vehicle.  She said that she had not bought another car since.  She had not known before that the Commissioners seized vehicles used for importing goods which were not for own use.  She said that she ran an employment agency in Birmingham and had used the vehicle for work.  Since losing her vehicle others had driven her to work.  She said that she did not know how much her car was worth.  She said that she had had the vehicle for two years prior to its being seized and had then paid £6,000 to purchase the vehicle second-hand.  She did not know the mileage of the vehicle.  
21.	The Commissioners’ evidence was contained in the statement of the review officer Mr Crouch to which was annexed the documentation. 

Submissions on behalf of Commissioners
22.	Mr Puzey submitted on behalf of the Commissioners that the appeal should be dismissed.  He submitted that the decision of the review officer to restore the vehicle upon payment was reasonable and proportionate.  The offer of restoration had been upon payment of the amount of duty evaded of £4,207.11 or the value of the vehicle whichever was the less.  He submitted that the task of the Tribunal was to decide whether the decision made by the reviewing officer Mr Crouch was one which a reasonable body of commissioners should have come to.  He submitted that following the decision of the Court of Appeal in the Hoverspeed case the Tribunal had to consider the proportionality of the actions of the Commissioners.  He submitted that the Commissioners had borne in mind that she had not been in the vehicle when it was being used to import the goods, and all the circumstances of the appeal in proposing to return the vehicle for the sums specified, and that that decision was proportionate.
23.	He submitted that Mr Stewart Cartlidge had not been a credible witness and that his allegation at the hearing that he was not given the opportunity to account for the cigarettes found in his car should not be accepted bearing in mind the officer’s clear account that Mr Cartlidge had lied twice in denying that the passengers had any tobacco cigarettes or beer, and in view of the officer’s clear note that the passengers had declined to stay for an interview.  He submitted that it was made clear in the Court of Appeal in the case of Gora (2003 EWCA Civ 525) that the function of the Tribunal was not to consider the facts of the seizure but only to consider the review officer’s decision as to restoration.
24.	Mr Puzey submitted that there was little doubt that the goods were being held by the brothers of the Appellant with a commercial intent. Mr Cartlidge had suggested that he had only previously bought cigarettes in Europe of a quantity of  2000 and was now bringing in nearly 15,000 cigarettes for himself and 15,000 for his brother who was accompanying him.  Mr Puzey submitted that if they really were bringing the cigarettes for their own use why would they have not declared the cigarettes at the time.  They clearly had a guilty conscience as they did not declare the cigarettes.  There was no documentary evidence to suggest that they had in fact just picked up their wages and that was the explanation as to why they were carrying £3,000 in cash.  There was no documentary evidence to support Mr Cartlidge’s assertion that they were going to see a man about a job.  It was odd that they were travelling on a Saturday afternoon, namely at a weekend, about a job.  No explanations had been put forward as to why they had six receipts for the cigarettes if in fact they had purchased the cigarettes altogether on one occasion.  There was no satisfactory explanation submitted by Mr Cartlidge as to why the cigarettes were purchased in six different bundles when the cash was handed over altogether on the one occasion.  The obvious inference was that they were buying the cigarettes for other people and that they were going to be reimbursed for the cost of the cigarettes.  Mr Puzey drew attention to the considerable quantity of cigarettes purchased, many times above the guidelines.
25.	Mr Puzey submitted that the credibility of the Appellant herself was open to question.  No clear reason had been put forward for the use of her vehicle.  Various explanations had been made for why her brothers had used her vehicle, but no consistent explanation had been given by each witness.  Mr Stewart Cartlidge had given a reason that her vehicle had been more comfortable, but that had not been the reason given by the Appellant herself.  Mr Stewart Cartlidge had given a second reason that his vehicle had been off the road but this had not been the reason given by the Appellant.  The Appellant herself had given as the reason that her diesel car was more economical than her brother’s vehicle but that was not the reason given by her brother.  Mr Puzey submitted that the Commissioners would have been justified in not offering restoration at all.  The vehicle had been used in an attempt to smuggle tobacco into the United Kingdom and, the volume of the cigarettes involved was high, and the importation was a serious matter involving deceit.  She had knowingly allowed the vehicle to be taken abroad.  She knew her brothers were smokers.  The Commissioners had taken into account her allegation that she had not known that her brothers had intended to buy cigarettes in offering the restoration subject to the conditions.  He submitted that it had been proportionate to offer the restoration of the cigarettes subject to the conditions even if the Tribunal found that the Appellant was ignorant as to her brothers’ intention to buy cigarettes in that quantity.  The fee required by the Commissioners for the restoration of the vehicle was relative and proportionate to the value of the duty evaded and the value of the vehicle and Mr Puzey submitted that the review decision was logical and appropriate.  He submitted that the review decision had taken into account the requirements as to proportionality raised in the Hoverspeed decision of the Court of Appeal, and the Hoverspeed decision in the High Court.  Mr Puzey referred to paragraphs 187,188 and 189 in the decision of the High Court in Hoverspeed.  He pointed out that the review officer had reached his decision after the Hoverspeed case, and had considered proportionality and had offered restitution on conditions.  Mr Puzey submitted that the decision of  the review officer was a reasonable approach to take in the light of the law after the Hoverspeed case.  He submitted that a tribunal would have to find that review officer’s approach was unreasonable in order to find in the Appellant’s favour, and he submitted that in fact the officer had not adopted an unreasonable approach.  In considering the proportionality of the decision Mr Puzey pointed out that the Commissioners faced a huge problem in tobacco smuggling, that publicity had been given to both this problem and the Commissioners’ forfeiture policy in the national Press, that the duty evaded was large in the case of the Appellant’s vehicle of over £4,200 and there had been a deliberate attempt by the passengers to mislead the Commissioners.  He submitted that the officer’s decision was reasonable in the light of the information available to him at the time.  He further submitted that the officer’s decision was reasonable in the light of the evidence heard at the hearing of this appeal.
Submissions by Appellant
26.	The Appellant submitted at the hearing that her appeal should be allowed.  She submitted that her brothers had not travelled in order to buy cigarettes for her.  She had not known that they had gone with the intention to buy cigarettes.  She submitted that if they had intended to smuggle they would have taken a bigger vehicle rather than her vehicle which did not have a big boot.  She submitted that her brother had made a big mistake in denying to the officer that they had cigarettes in the vehicle.  
The relevant law
27.	Alcoholic drinks, cigarettes and tobacco are chargeable with excise duty upon importation into the United Kingdom under the Alcoholic Liquor Duties Act 1979 and Tobacco Products Duty Act 1979 section 2.
28.	By regulation 4(1) of the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 SI 3135 the excise duty point at which excise duty is payable generally arises at importation.
29.	Under article 10(2) of the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992, except where the Commissioners otherwise allow, imported community excise which are subject to a duty of excise that has not been paid and which it could not consigned to a tax warehouse shall upon their importation be consigned to a REDS.
30.	Article 8 of the European Union Council Directive 92/12/EEC states that:
“As regard products acquired by private individuals for their own use and transported by them, the principle governing the internal market lays down that excise duty shall be charged in the Member State in which they are acquired”.
31.	Article 9 of the Council Directive states as follows:
“9.1	Without prejudice to article 8 excise duty shall become chargeable where products released for consumption in a Member State are held for a commercial purpose in another Member State”.
In this case the duty shall be due in the Member State in whose duty the products are and shall become chargeable to the holder of the products.
32.	Article 9.2 of the EC Directive provides as follows:
“9.2	To establish that the products referred to in article 8 are intended for commercial purposes, Member States may take into account inter alia the following:
-	the commercial status of the holder of the products and his reasons for holding them
-	the place where the products are located or where appropriate the mode of transport used
-	any document in relation to the products
-	the nature of the products 
-	the quantity of the products
Member States may lay down guide levels solely as a form of evidence.  These guidelines may not be lower than [specified levels]”.
33.	The quantity of those goods specified in the United Kingdom was in connection with tobacco products 800 cigarettes, 400 cigarillos, 200 cigars and 1kg of tobacco products.  The cigarettes figures since the seizure have been increased under amendment regulations 2002 No. 2692.
34.	Section 3 of the Excise Duty (Personal Reliefs) Order 1992 states that:
“Subject to the provision of this Order a community traveller entering the United Kingdom shall be relieved from payment of any duty of excise on excise goods obtained for his own use in cross-border shopping of which he transported”.
35.	“Own use” is defined in the Order as:
“Own use includes use as a personal gift provided that that if the person making the gift receives in consequence any money or money’s worth (including any reimbursement of expenses incurred in connection with obtaining the goods in question) its use shall not be regarded as own use for the purpose of this Order”.
36.	Section 5(3) of the Order establishes that paragraphs 3(a) and 3(c) applied to a person who has in his possession or control any excise goods afforded relief under this Order in excess of any of the quantities shown in the schedule to the Order.
37.	Paragraph 3(a) states that the Commissioners may require a person to whom this paragraph applies to satisfy them that the excise goods afforded relief from this Order are not being held or used for a commercial purpose.
38.	Paragraph 3(b)	provides that where a person fails to satisfy the Commissioners that the excise goods in question are not being held or used for a commercial purpose the condition imposed shall be treated as not being complied with.
39.	This schedule specified at the time in connection with tobacco products 800 cigarettes and 1kg of tobacco product as quantities about which a traveller may be required to satisfy the Commissioners in this way.  The cigarettes figure has since been increased to 200 cigarettes, and the tobacco figure increased to 3kgs.
40.	Paragraph 5(1) of the Order states that if this condition is not met “those goods shall without prejudice to article 6 be liable to forfeiture”.
41.	Paragraph 5(2) sets out various factors where regard should be taken in determining whether or not the condition in paragraph 5(1) is being complied with.
42.	Section 141(1) of the Customs and Excise Management Act 1979 (CEMA) provides that:
“(a)	any … vehicle … which has been used for the carriage … of the thing so liable to forfeiture, either at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and
(b)	any other thing mixed, packed or found with a thing so liable 
shall also be liable to forfeiture”.
43.	Section 152 to the 1979 Act provides that:
“The commissioners may, as they see fit … (b) restore, subject to such condition (if any) as they think proper, any thing forfeited or seized under [CEMA]”.
44.	Section 49(1) of CEMA enables the commissioners to forfeit dutiable goods that had been imported or held without payment of duty.
45.	The Court of Appeal in Hoverspeed appeal placed the burden of proof upon the Commissioners as to whether goods are being held or used for a commercial purpose.
46.	Section 15 of the Finance Act 1994 empowers the Commissioners to confirm and vary or withdraw a reviewable decision on behalf of the Commissioners.
47.	The basis of the Tribunal’s jurisdiction is set out in section 16 of the Finance Act 1994, subsection (4) of which provides that:
“In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of an appeal tribunal on an appeal under this section shall be confined to a power where the tribunal are satisfied that the commissioners or other persons making their decision could not reasonably have arrived at it”.
48.	In John Dee Ltd v Commissioners of Customs and Excise 1994 STC 941, Neill L.J. approved the principle that the tribunal could only properly review the commissioners’ decision if it was shown that the commissioners had acted in a way in which no reasonable panel of commissioners could have act, if they had taken into account some irrelevant matter, or had disregarded something to which they should have given weight, and stated that the tribunal may also have to consider whether the commissioners had erred on a point of law.
49.	The jurisdiction of  the Tribunal was further considered by the Court of Appeal in the case of Lindsay v Commissioners of Customs and Excise 2002 EWCA Civ 267.  Lord Phillips stated at paragraph 40-
“The principle issue before the tribunal, was whether the commissioners’ decision not to restore Mr Lindsay’s car to him was one that they “could not have reasonably have arrived at” within the meaning of those words in section 16(4) of the 1994 Act.  Since the coming into force of the Human Rights Act 1998, there can be no doubt that if the commissioners are to arrive reasonably at a decision, their decision must comply with the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in schedule 1 to the Human Rights Act 1998).  Quite apart from this the commissioners will not arrive reasonably at a decision if they had taken into account irrelevant matters or fail to take into account all relevant matters – see Customs and Excise Commissioners v J H Corbitt (Numismatists ) Ltd 1980 STC 231 at 239, 1981 AC 22 at 60 per Lord Lane”.
50.	In the Lindsay case the Court of Appeal considered the then policy of the commissioners as explained in a witness statement relating to the commissioners’ general policy of non-restoration.  Lord Phillips considered the commissioners’ policy at paragraphs 63-65 inclusive.  He concluded as follows:
“63.	I would not have been prepared to condemn the commissioners’ policy had it been one that was applied to those who were using their cars for commercial smuggling, giving that phrase the meaning that it naturally bears of smuggling goods in order to sell them at a profit.  Those who deliberately use their cars to further fraudulent commercial ventures in the knowledge that if they are caught their cars will be rendered liable to forfeiture cannot reasonably be heard to complain if they lose those vehicles.  Nor does it seem to me that in such circumstances, the value of the car used need to be taken into consideration.  Those circumstances will normally take the case beyond the threshold where that factor can carry significant weight in the balance. Cases of exceptional hardship must always of course be given due consideration. 
64.	The commissioners’ policy does not however draw a distinction between the commercial smuggler and the driver importing goods for social distribution to family or friends in circumstances where there is no attempt to make a profit.  Of course even in such a case the scale of importation, or other circumstances, may be such as to justify forfeiture of the car.  But where the importation is not for the purpose of making a profit, I consider that the principle of proportionality requires that each case should be considered on its particular facts, which will include the scale of importation, whether it is a first offence, whether there was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship that will be caused by forfeiture.  There is open to the commissioners a wide range of  lesser sanctions that will enable them to impose a sanction that is proportionate where forfeiture of the vehicle is not justified. 
65.	I do not think that it would be impractical to distinguish between the truly commercial smuggler and others.  The current regulations shift the burden to the driver of showing that he does not hold the goods for commercial purposes when these exceed the quantity in the Schedule.  In a case such as the present the driver importing for family or friends should be in a position to demonstrate that this is the case if called upon to do so (see the comments of Lord Woolf CJ in Goldsmith v Customs and Excise Commissioners 2001 1WLR 1673 at pages 1679-1680)”.
51.	The case of  Hoverspeed (2) in the Court of Appeal 2002 EWCA Civ 2002 clarified that the burden of proof as to commerciality is on the commissioners and not on the appellant.
52.	That case also decided that the seizure was not to be regarded as axiomatically invalid merely because it occurred as a result of a check which was invalid.
53.	The case also decided that if an individual acquires products for a person other than his own use such products are to be regarded as held for commercial purposes.
54.	In the Hoverspeed appeal in the High Court Case No 2002 EWHC 163L the Court stated at paragraph 187:
“We would however draw the same distinction as that which was drawn in the Lindsay case between the treatment of those who are found to be smuggling for profit and those who are directly or indirectly involved in not-for-profit smuggling.  So far as the latter are concerned the remedy applied by the commissioners must be proportionate to the activity of which complaint is made”.
55.	The Court of Appeal in Gora v Commissioners of Customs and Excise Case No.2003 EWCA Civ 525 confirmed that it was not intended that the tribunal should have jurisdiction to reconsider the condemnation of goods as forfeited, although the tribunal has the capacity to determine the issue of reasonableness which includes proportionality, in the light of facts found.
56.	The High Court in the case of Gascoyne v Customs and Excise Commissioners Case No. CH/2002/AWP/0743 has held that taken as a whole the condemnation and restoration rights are sufficient to comply with Convention Rights set out in article 6 of the ECHR.
Conclusions
57.	I have considered all the evidence in this appeal and the provisions of the law involved.  I make the following findings of fact and reach the following conclusions.
58.	I find that on 5 May 2002 the Appellant’s Rover car was returning to the United Kingdom being driven by the Appellant’s brother Mr Stewart Cartlidge with the Appellant’s other brother Mr Terence Cartlidge as the other passenger.  That vehicle was stopped by an officer of the Commissioners at the Dover Eastern Docks.  Mr Stewart Cartlidge told the officer that the vehicle belonged to the Appellant, his sister, and that he and his brother had been travelling to Luxembourg to see about a job as Bricklayers.  The officer asked them if they had any beer or tobacco with them.  Mr Stewart Cartlidge replied in the negative.  The officer asked them “So you have nothing at all?” to which Mr Stewart Cartlidge replied “No”.  It was only when the officer asked him to open the boot of the vehicle that Mr Stewart Cartlidge revealed that actually the boot contained tobacco and that the boot was full of tobacco.  The officer asked him why he had not told the officer when he asked that there was tobacco in the boot and Mr Stewart Cartlidge replied that he had lied to the officer because he had been told at Calais that he may not be allowed back into the United Kingdom at the Customs if he disclosed the existence of the tobacco and accordingly Mr Stewart Cartlidge had lied to the officer.  I am satisfied that Mr Stewart Cartlidge lied to the officer and attempted to deceive him.  I am further satisfied that the reason for the lies is that Mr Stewart Cartlidge well knew that the goods would be seized if he revealed the existence and quantity of the cigarettes in the boot of the vehicle to the officer.  I did not find Mr Sterwart Cartlidge to be a credible witness.  I did not believe his evidence that he had purchased the cigarettes on the spur of the moment in Luxembourg.  I did not believe his evidence that his intention had been merely to travel to Luxembourg to have a meeting with a contracts manager regarding building work on that Saturday.  Mr Stewart Cartlidge could not satisfactorily explain why he was having a meeting on a Saturday, and why he had no documentation at all with regard to that alleged meeting.  I am not satisfied that the decision to purchase the cigarettes was taken on the spur of the moment.  Mr Cartlidge and his brother had with them some £3,000 which they used to purchase the cigarettes.  I am satisfied that they set off from the United Kingdom to Luxembourg with the intention of purchasing the cigarettes.  I am not satisfied with their explanation that Mr Cartlidge merely happened to have on him £3,000 cash because on the way to Dover he had gone to Redditch to pick up the wages of himself and his brother in cash.  He had no documentary evidence relating to the handing over to him of that money in Redditch.  I am satisfied on all the evidence that Mr Cartlidge had throughout intended to take cash with him to Luxembourg to purchase cigarettes to bring back to the United Kingdom.
59.	I further find that the cigarettes purchased were not purchased for the own use of Mr Stewart Cartlidge and his brother.  The quantity of cigarettes purchased namely 29,980 cigarettes was a very large amount and bearing in mind his stated consumption of cigarettes of 30 cigarettes a day, and even the stated smoking capacity of his brother and their partners.  No satisfactory explanation was given by Mr Stewart Cartlidge as to why if he had paid over in cash for the cigarettes 4,500 euros (some £3,000), six separate receipts were given to him in Luxembourg for the cigarettes, and cigarettes supplied in six bundles.  I find that this is more consistent with Mr Cartlidge purchasing the cigarettes for the use of others.  I further find that in all the circumstances Mr Cartlidge and his brother were bringing the cigarettes into the United Kingdom for profit for resale, and they were involved in smuggling for profit.
60.	The vehicle in which they were travelling was owned by the Appellant.  I find that the cigarettes and vehicle were validly seized by the Commissioners.  I further find that as the vehicle was used to transport cigarettes purchased for commercial purposes and not for own use it would have been proportionate for the Commissioners to have refused to restore the vehicle to the Appellant without any conditions.
61.	I did not find the Appellant herself to be a credible witness.  I did not believe her evidence that she did not know that her two brothers were intending to return to the United Kingdom in her vehicle with cigarettes purchased in Luxembourg.  I find that she loaned her vehicle to her brothers knowing fully well that they intended to use the vehicle to purchase a large quantity of cigarettes which they would bring back to the United Kingdom in her vehicle not for their own use.  The ferry crossing was booked by another sister of the Appellant.  I am satisfied that the Appellant fully knew the real purpose of her brothers’ visit to Luxembourg and that the purpose was nothing to do with a job.  I did not believe that the Appellant was an innocent car owner whose vehicle had been used to import cigarettes without her knowledge or consent. Different explanations were given by Stewart Cartlidge and the Appellant as to why her vehicle had been used.  I am satisfied that her vehicle was used because it was less likely to be stopped than if her brothers had been using Mr Stewart Cartlidge’s van.
62.	The Commissioners’ review officer could reasonably have refused to restore her vehicle at all.  I find that the review officer took into consideration the Appellant’s claim that she was an innocent owner, and that the seizure had caused her hardship, in proposing in his review decision that the vehicle could be restored to the Appellant on condition that she paid a restoration fee of £4,207.11 as an amount equivalent to 100% of the duty on improperly imported excise goods, or a payment based on the value of the vehicle at the time it was seized whichever was the better amount.  I find that that decision could not be faulted.  On the assumption that the Appellant’s claims to innocence were correct that decision was proportionate.  In view of my findings that the Appellant was not an innocent owner the review officer’s proposals were more than generous and certainly could not be classed as unproportionate.
63.	I am satisfied that the Commissioners have proof that the goods were not for the own use of the Appellant’s brothers, and that the goods were therefore being held for commercial purposes, from the quantity of goods, the lies told by the brothers to the officer and declining to stay for an interview. I believed the evidence of the officer that the Appellant’s brothers did decline to stay for an interview, and I did not believe the evidence of Mr Stewart Cartlidge that he may have stayed for an interview if the officer had not discouraged him. I am satisfied following the Hoverspeed decision in the Court of Appeal that the seizure of the goods and the car was valid.  I am satisfied that the Commissioners acted proportionately in refusing to restore the vehicle except on the conditions they imposed. I find that there is no undue hardship to the Appellant caused by the seizure of the goods. I consider that there are no exceptional circumstances in the case of the Appellant which would justify the Commissioners restoring the vehicle to her. 
64.	I find that the excise goods and vehicle were liable to seizure and forfeiture in accordance with the legislation. I find that the Commissioners’ decision not to restore the goods initially was in accordance with that legislation. I find that the Commissioners’ review decision not to restore the goods except on conditions was reasonable and in accordance with the legislation. I find that the decision was reasonably arrived. I find that the Commissioners have not acted in a way that no reasonable panel of commissioners could have acted, and they have not taken into account irrelevant matters or disregarded something to which they should have given weight, and I further find that they have made no error in law.

65.	The appeal of the Appellant is dismissed.  The Commissioners did not apply for costs and I make no order as to costs.

I VELLINS
CHAIRMAN
RELEASED:

MAN/02/8223