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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 >> Reynolds v Customs and Excise [2004] UKVAT(Excise) E00724 (27 May 2004) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00724.html Cite as: [2004] UKVAT(Excise) E724, [2004] UKVAT(Excise) E00724

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EXCISE DUTIES — Importation of 25 kg of hand rolling tobacco by driver of vehicle – importation of 13 kg tobacco and 13000 cigarettes by his 2 passengers – forfeiture of vehicle and goods – whether review decision not to restore vehicle and goods was reasonable – appeal dismissed

MANCHESTER TRIBUNAL CENTRE

SIDNEY REYNOLDS Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr I E Vellins (Chairman)

Mr J T B Strangward (Member)

Sitting in public in Manchester on 5th May 2004

Mr R D Walmsley for the Appellant

Miss M Mayoh of Counsel instructed by the Solicitor for the Customs and Excise for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION
1. In this appeal the Appellant is Mr Sidney Reynolds who lives in Wirral Cheshire. He was the driver of a Vauxhall Vectra car N311EKC which was stopped at Eastern Docks Dover on 13^th April 2002 with a Mr G Harris and a Mr H Cook as his passengers. The vehicle contained 38 kgs tobacco, 13000 cigarettes and some cigarillos, beer, wine and spirits, of which the Appellant himself had purchased 25 kgs of the tobacco and 2 bottles of spirits. The vehicle and its goods were forfeited by officers of the Commissioners. The Appellant appeals against decisions of the Commissioners to refuse to restore to him his excise goods and the vehicle. The decision to refuse restoration of the goods and vehicle to him was made by the Commissioners' on 14^th May 2002. The Appellant had requested a review in relation to the vehicle in May 2002. Following a review the decision not to restore the vehicle was confirmed and notified to the Appellant by a letter from the Commissioners dated 26 June 2002. The Appellant appealed the decision not to restore the vehicle to the Tribunal. The hearing of that appeal was adjourned by the Tribunal on 28 July 2003 so that the Commissioners could undertake a review of the decision not to restore the Appellant's goods. A review was undertaken by the Commissioners and a decision refusing restoration of the goods was made on 16 October 2003. This appeal was therefore a hearing of appeals against both decisions of the Commissioners on review refusing restoration of both the goods and the vehicle.
2. At the hearing of this appeal at Manchester on 5 May 2004 the Appellant was represented by Mr R D Walmsley, and the Commissioners were represented by Miss M Mayoh, Counsel.

Background

3. On 13^th April 2002 at Eastern Docks Dover an officer of the Commissioners, Officer Brown stopped the Vauxhall Vectra car being driven by the Appellant, containing as passengers Mr Harris and Mr Cook. The officer asked them where they had been travelling. Mr Harris replied "Belgium". The Officer asked where in Belgium, and Mr Harris replied "I'm not sure". Mr Harris said that it was just a beer and tobacco trip. The Appellant said that they had been away for one day and that they vehicle belonged to him which he had owned for about a year. The officer asked them if they had any alcohol or tobacco. Mr Harris replied that they had a case of beer and 60 cases of cigarettes containing 200 cigarettes each. The officer asked them if they had any tobacco. Mr Harris replied that they had 600, 50 gram pouches. The officer asked them if that was for all of them combined, and they all replied "yes". The Appellant told the officer that this was the first time that he had travelled, and Mr Harris said that he had travelled two years previously, and Mr Cook also had travelled two years previously. None had any problems with Customs before.
4. Each of the occupants were then interviewed separately by officers of the Commissioners.
5. At his interview the Appellant told Officer Brown that of the goods in the vehicle, 5 boxes of tobacco and 2 bottles of spirits belonged to him. The officer told the Appellant that the 5 boxes of tobacco amounted to 25 kgs. The Appellant replied that he did not realise that he had that much. He said "they were buying it like that, they asked how many I wanted – I just told them 5 boxes". The officer asked if he had intended to buy 25 kgs of tobacco. The Appellant replied "not when I first came but I was going to get enough to last me a while". The officer asked if it was a case that the Appellant had seen everybody else buying large quantities and had thought that that was what he was allowed. The Appellant agreed. The Appellant told the officer that he had started with £2000, and the money had come from his redundancy. He had been made redundant about 4 weeks previously. He had been paid off by a cheque into the bank. He received £7000 redundancy money of which he spent £4300 on the remainder of the monies owing on the vehicle and was left with £2700. He said that he could not sign on the dole for 90 days. He was just buying the tobacco to make it last. He said that his wife, daughter and her husband all smoked rolling tobacco so he thought that this would keep them off his back as he would not have to give them money to buy tobacco at the shops. He said that he had tried for 2 jobs but that the "reading has held me back with those, so that was another reason to get tobacco". He said that he could keep the tobacco for his wife and that she had been trying to give up smoking because she had "the bug in the blood which is the beginning of cancer". The officer informed the Appellant that it was strange that he intended to supply her with more tobacco if she had cancer. The Appellant replied that it was his help to save money and that he did not intend to make money but that it was for their personal use. He told Officer Brown that none of the cigarettes belonged to him and that he did not smoke. He said that if his daughter came to the house and had not any tobacco she would ask his wife for pouches of tobacco. His daughter did not live with him as she was married. He did not intend to receive any payment from his wife, daughter or son-in-law for the tobacco, and purchasing the tobacco had just been the idea of the Appellant. He did not have any receipts for the goods stating that he had thrown them away and that he had a habit of screwing things in his pocket and then throwing them away. He actually handed over the cash for the tobacco and that all three of them had bought their own good individually. He said he had spent something like £1070 for his goods. He had therefore intended to give over £1000 worth of tobacco away to his family.
6. The Appellant asked the officer "it doesn't go off, tobacco does it?" The officer told him that it had a shelf life. The Appellant replied that he could give it away as Christmas presents or birthday presents. The officer asked him how long did he think that the 25 kg would last. The Appellant replied that he was not sure and had not worked it out. He said that with regard to financial commitments he paid about £150 a week on a mortgage out of the bank and that his wife paid for the food from her wages. He said that he did not have any savings apart from the redundancy money. He said that he had never seen a Public Notice 1 before. He said that the tobacco was going into his house and his daughters and it would not be sold. He said that he did not know that excise goods were liable to duty but that he knew that the shops were dearer in the United Kingdom and that was why he wanted to get a big stock. He said that he could not stop his wife smoking. He said that he knew that he could not buy tobacco and sell it. He had not been over to get tobacco before. His two passengers had been before. He had the car so they agreed to travel together. He had worked with Mr Harris but he had not known Mr Cook.
7. The officer's notebook was read to the Appellant who agreed that it was a true and accurate record of the interview. The notebook was not signed by the Appellant.
8. Mr Harris at his interview stated that he had bought 60 cartons of cigarettes and 100 pouches of tobacco from the same shop as the Appellant and Mr Cook. He had paid in cash. He had Lambert & Butler and Regal cigarettes and Golden Virginia tobacco. He stated that he had 1200 cigarettes and then amended this to 1300 cigarettes, and then amended this to 12000 cigarettes. They had cost him just over £1000. He thought that this was for the tobacco and cigarettes. He did not have a receipt. He stated that the Regal cigarettes had cost £950 and that he had spent £79 for 800 Regal cigarettes bought on the ferry. The Lambert & Butler cigarettes had cost £240 and the tobacco had cost £240. When the officer pointed out to him that the total cost was nearer £1500. He said that all of the goods were for his own use as he smoked 60 cigarettes a day. He normally smoked Regal but also Lambert & Butler as they were cheaper, and tobacco as it lasted longer. He also had 10 pouches of Old Holborn tobacco for his brother in law. He said that a pouch would last him 2 days and he could obtain 35 cigarettes from a 2 ounce pouch, and 100 cigarettes from a 50 gram pouch. He expected the goods to last 12 months. He had travelled 12 months previously and had purchased tobacco and cigarettes. He said that he was made redundant in February and had received £6750 and that his wife was employed. He had funded the purchase from his redundancy money which were now gone and he had no other savings. On the previous trip he had travelled with Mr Cook and a Mr Hazelwood.
9. In his interview Mr Cook told an officer that he had 150 pouches of Domingo tobacco, 600 Lambert & Butler cigarettes and 400 Superking cigarettes. He also had some brandy and a case of larger. He had purchased them from a shop in Belgium called "Online Tobacco". He had been there in October 2000 but not since. He had paid £288.50 for the tobacco and £95 for the cigarettes in cash. He had been told about the trip the previous night. The goods were for his own use except 40 pouches of tobacco for his father and some cigarettes for his mother. The goods would last him about a year. He was employed and had a net disposable income of £180 per week. He had funded the purchase from money in the bank. He had worked out the purchase as a years supply. In October 2000 he had purchased about 100 pouches and a few cigarettes. He had travelled with Mr Harris and two other friends. He had bought Domingo tobacco before as it was cheaper than Golden Virginia. One pouch would last him 3 to 4 days. The Lambert and Butler cigarettes were for his girlfriend and the Superking cigarettes for his mother
10. The officers were not satisfied that the goods were being imported for their own use. The officer was satisfied that the goods were being imported for a Commercial purpose and the goods were seized. The vehicle was also seized. The reason for seizure were as follows. The Appellant was carrying excise goods in excess of the guidelines. He was carrying a considerable amount of tobacco. The Appellant had stated that he did not smoke himself and that he had purchased the goods for his family. The officer considered it unreasonable that he would purchase such a large quantity of goods to give away as gifts given his financial position. He had been made redundant approximately 4 weeks prior to the seizure. He had had no savings apart from the redundancy payment that he had received. The officer concluded that as the Appellant was unemployed it was unreasonable to have used his redundancy money to purchase such a large quantity of tobacco. It was not probable that the tobacco would have been smoked by his family before the tobacco had gone off. The Appellant and his travelling companions had used the vehicle in the attempted importation of tobacco amounting to some 38 times the guidelines. Mr Harris had been unsure of the amount spent having claimed to have spent £1000 whereas in fact he had spent £1500. Bearing in mind his income and expenditure it was unreasonable for him to spend the rest of his redundancy money on tobacco. There had been a discrepancy between Mr Harris and Mr Cook relating to the ownership of the Lambert & Butler cigarettes. All three of them had mis-declared the goods on interception having claimed to have had 600 pouches of 50 grams of tobacco which was equivalent to 30 kgs. The actual quantity of tobacco found was some 38 kgs.
11. The Appellant did not challenge the legality of the seizure and the goods were condemned as forfeit.
12. On 15 April the Appellant wrote to the Commissioners to request restoration of the vehicle and goods. In that letter he stated that this had been his first excursion on the Continent and he had been travelling with two friends. When shopping they had been told there was no limit on the goods that they were able to bring back to the United Kingdom as long as the goods were for personal use only. He purchased 5 boxes of rolling tobacco for his family. He stated that there were 4 smokers in his family. He stated that the remaining tobacco and cigarettes in the car were bought by Mr Harris and Mr Cook for their own personal use. They had made no attempt to conceal the goods in the car. The Appellant had recently been made redundant as had Mr Harris and they thought that buying a stock of tobacco and cigarettes on the Continent would save them money in the long term. They believed that the tobacco and cigarettes that they bought would last for at least 12 months but had been unaware of the shelf life of the tobacco. He stated that he was reliant on his car to find new work as he had been made redundant and the public transport system in his area was unreliable. He had just paid his car off in full and would not have done anything to risk losing it. He believed that purchasing 5 boxes of tobacco was acceptable. He had sent to the Commissioners a copy of a letter from his pension company dated 26 March 2002 which had enclosed a cheque for £12760 in respect of a cash sum which the Appellant had elected to take from his pension scheme.
13. On 19 April 2002 the Commissioners wrote to the Appellant asking him to clarify if he wished to appeal or request restoration. On 24 April 2002 the Appellant replied confirming that he would like to request a restoration of his goods and vehicle.
14. On 14 May 2002 the Commissioners' wrote to the appellant refusing restoration. The officer stated in the letter that the officer had considered all the factors in the case and found that there were no exceptional circumstances to justify restoration. The reasons for the refusal were similar to those previously described.
15. On 24 May 2002 the Commissioners received a letter written by the wife of the appellant on behalf of the Appellant requesting a review of the decision not to restore his vehicle. The letter stated that he was not asking to review the goods involved. The letter stated that the Appellant had not been aware of the shelf life of the tobacco and that the tobacco was for his family which included 4 smokers. He bought the tobacco thinking it would last for at least a year. He was going to keep the tobacco in his garage where it was cool and moist. He stated that his wife was a heavy smoker and that their daughter and her husband borrowed a lot of tobacco as they did not have a lot of money. He had thought that by buying the tobacco this would save him money and he could be giving the tobacco for birthdays and Christmas present. He stated that it was not all for gifts but the majority was for his wife. He had forgotten to tell the original officer that he just received a lump sum from his pension and he also mentioned that his wife worked. He stated that his wife had mycocis fungoids and that she saw a specialist every 3 to 6 months and if she needed treatment she had to attend hospital twice a week. He needed transport for that and also to find a job. He had to refuse two jobs as he needed transport. He had not attempted to conceal anything when he had returned to the United Kingdom.
16. The review officer, Officer Harman, wrote to the Appellant on 26 June in which the officer considered the facts and representations and decided not to offer restoration of the vehicle to the Appellant. The reasons set out in that letter were similar to the terms of a later letter sent by the Commissioners on 16 October 2003.
17. The Appellant appealed against the decision of the review officer to the Tribunal and a hearing of this appeal was fixed for 28 July 2003 at Manchester. It was agreed at that hearing by consent that a further review of the case would be conducted in order to allow the Commissioners' to consider restoration of the Appellant's goods. The Commissioners' had conducted the review of the Appellant's case to consider restoration of the vehicle only, as this was how the Commissioners had interpreted the Appellant's request for review. However, the Appellant had stated at the hearing that his wife had written a request for review on his behalf and that he intended to request restoration of both goods and vehicle. The Tribunal directed a further review to take into consideration restoration of the Appellant's goods.
18. On 29 July 2003 the Appellant's representative Mr Walmsley wrote to the Commissioners requesting a review to consider the restoration of the goods. He stated that the Appellant had both reading and writing difficulties, and this was the cause of his wife having written requesting a review to consider restoration of the car only without realising that the Appellant was concerned about the loss of more than £1000 worth of goods.
19. On 16 October 2003 Officer Harman carried out a review relating to the restoration to the Appellant's goods. The officer stated that he considered all of the information afresh and decided not to restore to the Appellant his goods. In conducting the review the officer noted that no further information had been provided by the Appellant. The officer considered that the goods and the vehicle had been correctly seized for the following reasons.
20. When the officer had stopped the Appellant, the Appellant and his passengers had mis-declared the quantities that they had in the vehicle. This implied that either the Appellant was unaware of the purchases that he and his passengers had made or alternatively he was trying to deceive and mislead the officer in some way. Although Mr Harris had initially spoken on behalf of the three of them, at no point did the Appellant contradict Mr Harris. There had been doubt cast over the ownership of the Lambert & Butler cigarettes with Mr Harris claiming they all belonged to him and Mr Cook claiming that they all belonged to him. The Appellant himself was a non-smoker. He had claimed that the excise goods were to be given as gifts to family members but had failed to make any enquiries as to what they wanted or how much to buy them. His claim that the goods were to be used as gifts was not creditable. It was unlikely that the large quantities purchased were for the wife of the Appellant, his daughter and son-in-law only. The Appellant was also having difficulty in obtaining employment and it was illogical that he would spend so much money in making such a large purchase. He had stated that his wife has been diagnosed with Cancer and was trying to give up smoking. It was therefore illogical that he would have bought for her such a large quantity of tobacco. In his review request letter he had stated that there were 4 members of his family who smoked the tobacco but he did not specify who this fourth person was. His suggestion that the goods were to be used for Christmas and birthday presents was not plausible bearing in mind that the goods were bought in April. He has stated that he took £2000 on the trip in case his car broke down but this was not plausible and the officer concluded that the money was taken by the Appellant with the express intention of purchasing a large quantity of excise goods. The officer concluded that the financial circumstances of the Appellant, who was using up the last of his redundancy payment to buy tobacco and with his living expenses far outweighing his income, suggested to the officer that some if not the majority of the goods imported by the Appellant were for commercial purposes in order to derive profit. The officer concluded that the Commissioners were correct to seize the goods and it was not their policy to restore the goods unless there were exceptional circumstances.
21. Accordingly the Commissioners had reviewed both the questions of the restoration of the goods and the restoration of the vehicle.
22. The Appellant appealed on 6 November 2003 stating as the grounds for his appeal that he disputed that any offence had taken place and contended that the subsequent seizure of both the goods and the car by the Commissioners' was unlawful.

Evidence at hearing

23. Oral evidence was given at the hearing of this appeal by the Appellant and by review officer Mr Harman.
24. The Appellant said in evidence that when Officer Brown had written his answers in her notebook he had not known what the officer had written because the Appellant has reading and writing difficulties. He stated that he did not tell the officer about the amount of his mortgage payments because the Appellant did not actually know the amount of such payments as his wife did the paying. He accepted however that after his interview an officer had read back to him the officer's notes. He had not been able to read them because of his reading and writing problems. He said that no one had read the notes back to him since, except that his wife had read part of the notes to him. He said that when they had first been stopped Mr Harris had told the officer how much they had purchased, but as the Appellant is not good with figures he did not know what had been purchased so "I went with him". He said that when the officer wished to examine the vehicle, the Appellant had opened the boot and taken everything out and had not hidden anything. He had not known the total amount purchased by the three of them because he only knew that he had purchased 5 boxes of rolling tobacco. The Appellant said that he did not know how much tobacco was in the 5 boxes. He said that at the shop he had asked how much tobacco he was allowed and had been told at the shop as much as he liked. He then asked for 2 boxes, but when these were sent down the shute it had not looked like much so he asked them to give him another 3 boxes. He had not been aware of any guidelines and had been told by people that there was no limit on the amounts that could be purchased as long as it was for personal use. He told the interviewing officer about the redundancy money that he had received but had not mentioned the monies that he had taken out of his pension fund by way of lump sum. The trip was planned about a week beforehand. He had time to go abroad because he was not working. He had the money in the house. He took more than he needed because he was scared of breaking down and did not use a credit card. He had not known the value of the tobacco that he had bought because it was an impulse buy and he could not read what was on the box. He had not asked how much quantity of tobacco each box contained. He had no idea of the shelf life of the tobacco. It had not been stated on the boxes and he had been told by people that stale tobacco could be livened up by putting the tobacco with potatoes or apples. The Appellant said that part of the tobacco had been for his son. He could not explain why he had not mentioned his son previously at the interview. The Appellant then said that he had mentioned the fourth person namely his son at the interview. When it was pointed out to him that this was not in the officer's notes he said that he could not remember. He had not considered giving further information to the Commissioners after the previous hearing at the Tribunal. He had asked his wife to give up smoking but she had refused. He said that his wife smoked a couple of pouches a week. He agreed that his wife in one of the letters had stated that the majority of the tobacco was for her. He said that she did not know how much he was bringing back for her.
25. It was put to the Appellant that if his wife smoked 2 pouches a week 500 pouches would have lasted her for almost 5 years. He replied that some of it would have been given to his daughter and son-in law and his son.
26. The Appellant said that he had been working doing odd jobs and had been re-employed almost straight away by the employer who had originally made him redundant. He had been told that his wife's diagnosis could turn into cancer.
27. The officer's notes of the interview with the Appellant were read back at the hearing to the Appellant. The Appellant said that there were only 2 matters in the interview notes that he was challenging. One was that he did not believe all three of the travellers had said "yes" when Mr Harris had told the officer that the tobacco consisted of 600 50 gram packets combined. Secondly he did not recall having told the officer that the mortgage was £150 per week.
28. Officer Harman gave evidence at the hearing confirming the contents of his review decisions. He considered that he had heard nothing at the hearing which would cause him to change his decisions. He was an experienced officer. He had considered all the evidence when reaching his decisions. He explained the policy of the Commissioners which was not to restore goods and vehicles where it was considered that there was commercial smuggling for profit except in very exceptional circumstances. He considered that the tobacco and cigarettes were being imported for commercial purposes for profit. He agreed that there had been no mention in the officer's notes as to why the Appellant's vehicle had been initially stopped. He agreed that no attempt had been made to conceal any of the goods. The Appellant had not contradicted Mr Harris's information to the officer of the total quantity of the goods, which had been incorrect. The officer was made aware in the correspondence that the Appellant had difficulties in reading and writing, but the officer had asked all of them if Mr Harris's statement as to the total amount of the goods was for all of them combined and all had replied "yes". The boxes of tobacco had been marked with the amount of tobacco contained, and the officer considered that the Appellant and his 2 companions would have known the amount. The Appellant would have been able to have seen the number 5, showing that there was 5 kgs per box, but the officer did take it into account that the Appellant might not have been able to read it on the box. The officer did take it into account Mr Crook's smoking habits which were consistent with his tobacco lasting about 12 months. He had also taken into account that Mr Cook had bought Domingo tobacco which he had previously bought. He accepted that the Appellant did not sign the notes of the interviewing officer. He accepted that Mr Harris may have made a mistake in declaring the quantity of tobacco but the officer found it inexplicable that 8 kgs equivalent to 160 pouches of tobacco have not been accounted for by Mr Harris and neither of the other two put matters right. He accepted that the life of tobacco would depend on where and how it was stored, and the fact that tobacco may have completed its shelf life did not mean that it could not be smokeable. The officer however considered that the quantity of tobacco purchased by the Appellant in relation to the smoking habits of his wife would have meant that a large amount of the tobacco would have gone off. He accepted that since the Hoverspeed decision the onus is on the Commissioners to prove that the importation was commercial and not for the passenger's own use.
29. Miss Mayoh submitted on behalf of the Commissioners that the review officer had reasonably arrived at his decisions not to restore the excise goods and the vehicle to the Appellant. The officer had borne in mind the need for proportionality and had considered whether there were exceptional circumstances in the case of the Appellant. The officer had had regard to the decision in Lindsay v Commissioners and Excise 2002 1WLR1766 and in particular the need to distinguish between the true commercial smuggler and the traveller claiming that goods were for sale to family and friends at cost price and not for profit. The officer had considered all the evidence before him including the interview notes and the correspondence from the Appellant together with the applicable legislation and the Commissioners' policy. The officer had rejected the explanation given by the Appellant as to the intended purpose of the goods and had explained how it was concluded that the goods were not intended for distribution amongst the Appellant's family and friends as gifts. She submitted that the decision to reject the Appellant's explanation was not one which no reasonable officer could have arrived at. She submitted that the decision of the officer was reasonable and that the application of the Commissioners' policy of non restoration in this case could not be criticised due to its pursuant of a legitimate aim. The officer had concluded that a decision not to restore would not cause the Appellant exceptional hardship. The decision was not outside the bounds of reasonableness. The matters relied upon by the Appellant did not constitute exceptional circumstances or hardship. No further evidence had been provided by the Appellant following the initial hearing before the Tribunal on 28 June 2003. She submitted that there were no circumstances to justify departing from the normal policy not to restore the goods and vehicle. The decisions were plainly reasonable. She submitted that the appeal be dismissed.
30. Mr Walmsley submitted on behalf of the Appellant that the appeal should be allowed. He submitted that there was no evidence of any commercial importation. He submitted that the officer's decisions were based on conjecture and a false interpretation of the facts. He submitted that the Appellant should not be penalised by Mr Harris's mis-declaration of the total amount of the goods. He submitted that the officer had not taken into account that Mr Cook had demonstrated that the items that Mr Cook had purchased were for his own use. He submitted that the officer had placed an incorrect interpretation on the Appellant's spending of his own money, and had given too much importance to the officer's own views as to the shelf life of the tobacco. He submitted that the officer had incorrectly considered that the burden was on the Appellant to prove that the goods were for the own use of the Appellant and his family.

Conclusions

31. We have considered all the evidence in this appeal and the principles of law involved and make the following findings and fact.
32. We find that on 13 April 2002 when the officer of the Commissioners stopped the Appellant's vehicle which contained the Appellant and his 2 passengers, the vehicle contained 38 kgs of tobacco and 13000 cigarettes together with some beer, spirits, wine and cigarillos. We find when they were stopped by the officer the 3 travellers only declared 12000 cigarettes and 30 kgs of tobacco as opposed to 13000 cigarettes and 38 kgs tobacco that were in the vehicle. Mr Harris and Mr Cook each claimed during their interviews that each one had purchased all the Lambert & Butler cigarettes.
33. The Appellant does not smoke. He made the trip with the specific intention of purchasing tobacco. He claimed that he was purchasing the tobacco for members of his family. He denied that he had previously made any enquiries of his family as to what they wanted or how much they wanted. The Appellant had expended some £1000 on the tobacco. He claimed that he did not know how much tobacco he was purchasing and that he had merely bought 5 boxes without knowing how much tobacco they contained. We find that the Commissioners quite reasonably doubted his claim that the tobacco was to be used as gifts for his family. The Appellant was aware that his wife had Mycocis Fungoids which could lead to cancer and had asked her to stop smoking. In correspondence he had stated that the majority of the tobacco was for his wife. We do not find it credible that in the circumstances the Appellant was buying such a large quantity of tobacco mainly for his wife. He has given different explanations as to which other members of his family would benefit from tobacco as gifts. His suggestion that tobacco was to be used as presents for Christmas is not credible as the importation took place in April. The Appellant stated that his wife smoked 2 pouches of tobacco a week. The amount of goods imported far exceeds his wife's claimed smoking habits. The Appellant had recently been made redundant shortly before the trip. We do not find it creditable that the Appellant would have spent such an amount of money in these circumstances on tobacco as gifts.
34. We find that the Appellant was importing the tobacco for a commercial use, and for profit. It was not for his own use. We do not find that he was importing the tobacco as a gift to his wife and family.
35. We find that the review officer considered all the relevant information.
36. We are satisfied that there is no exceptional hardship in the case of the Appellant. We further find that the decision not to restore the goods and vehicle was proportionate. We are satisfied that the Commissioners have proved that the goods were held by the Appellant for a commercial purpose.
37. We did not consider the Appellant to be a credible witness, and we did not believe that the fact that he had difficulties in reading and writing was a satisfactory explanation for the discrepancies at the interviews.
38. The Appellant was importing a considerable amount of tobacco, far in excess of the guidance levels. We find that the Commissioners acted reasonably in considering that the goods were held for a commercial purpose. The goods were imported without payment of duty. Duty is chargeable when goods are held for a commercial purpose. The goods and vehicle were rendered liable to forfeiture under the Customs and Excise Management Act 1979 and duly seized.
39. The Appellant had made no challenges to the legality of the seizure and the goods and vehicle were duly condemned as forfeited under the provisions of that Act. We find that the decision of the Commissioners not to restore the goods and vehicle was reasonable and in accordance with their stated policy. We find that there is not any exceptional hardship to the Appellant caused by the seizure of the vehicle and goods and that the policy of the Commissioners was in pursuance of a legitimate aim.
40. We 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. We further find that the Commissioners have made no error in law.
41. The appeal of the Appellant is dismissed. The Commissioners did not apply for costs and we make no order as to costs.

I E VELLINS

CHAIRMAN

Release date:

MAN/03/8186