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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 >> Alder v Customs and Excise [2004] UKVAT(Excise) E00739 (04 June 2004) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00739.html Cite as: [2004] UKVAT(Excise) E739, [2004] UKVAT(Excise) E00739

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Restoration appeal — road vehicle seized when fuelled with red diesel — recently purchased — restored forthwith subject to conditions — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

MICHAEL ALDER Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mrs E Gilliland (Chairman)

Mrs R Dean (Member)

Sitting in public in Manchester on 5 April 2004

The Appellant did not appear and was not represented

Miss M Mayoh, of counsel, instructed by the Solicitor's Office of HM Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION
1. The appeal before the tribunal is that of Michael Alder (the Appellant) against a decision of the Commissioners on review to uphold a decision made to offer restoration of the Appellant's vehicle to him on payment of a fee of £500.00. The Appellant has not attended nor been represented at today's hearing and at the request of Counsel for the Commissioners we have decided to proceed to hear the matter under Rule 26(2) of The Value Added Tax Tribunals Rules 1986.
2. Certain facts are not in dispute between the parties. The vehicle in question was a blue Leyland DAF 200 registration number G615 GWW (the vehicle); it belonged to the Appellant; and was seized from him on 29 June 2003. It was restored to the Appellant forthwith on his making a payment of £500.00. The procedure did not affect any rights of appeal of the Appellant.
3. The background of the seizure was that on 29 June 2003 an officer of the Commissioners was on duty at Park Lane Abram Wigan. He stopped the vehicle and he then tested the fuel in the fuel tank. This is noted in the officer's notebook as follows: " Formal samples taken from vehicle which was red in appearance. Sample ref. No. 140298.Driver declined to take a sample…" The notebook was signed at the end of the entry by the Appellant as a "true and accurate record". The Appellant answered various questions put by the officer and again these were recorded in the notebook. The Appellant confirmed that he owned the vehicle which he had bought three weeks previously in a private sale from Billy (William) Turner. The Appellant had fuelled the vehicle the previous day having put in £10.00 worth. He did not usually put much in; the fuel gauge did not work and he only used the vehicle three days each week for salvaging metal on tips. The Appellant said that he had put in £20.00 worth of fuel in three weeks. He did not know the fuel was rebated. He used the same Shell Garage at Wigan Road Westhoughton and though he had no receipts the person who worked in the garage knew him and could confirm his fuel purchases. He had three vehicles which he took in there and one of them a Ford Maverick was a diesel. He was aware that it is illegal to use red diesel in a road vehicle.
4. Although the officer seized the fuel and the vehicle under section 139 of The Customs and Excise Management Act 1979 (CEMA) as liable to forfeiture under section 13 (6) of the Hydrocarbon Oils Duties Act 1979 (the Fuel Act) and section 141 (1) (a) of CEMA respectively he immediately offered to restore the vehicle on payment of £500.00 which was equivalent to the civil penalties for "taking in" and "using" rebated fuel in a road vehicle an amount of £250 in respect of each. The officer could have required an additional payment that is 100% of the duty avoided but did not do so. When we asked at the hearing why the officer had not claimed the additional amount which was in the Commissioners' view properly payable we have been told that the calculation relating to duty depends on the quantity in the tank and it is a difficult one. It was presumed that the officer might have been too busy on that day to take it further. No storage costs of course arose so far as the incident was concerned.
5. On 11 July 2003 the Appellant wrote asking for a reconsideration of the penalty which was treated by the Commissioners as a request for a review of the decision to impose a restoration fee on restoration of the vehicle. Further information was supplied by the Appellant and he also sent to the Commissioners receipts relating to fuel purchases and the V5 registration document and MOT certificate. The Commissioners have drawn our attention to discrepancies in the information supplied on fuel. Despite what he had said at the initial interview the Appellant in his letter said that he had purchased £5.00 worth of diesel at the Save Garage Wigan Road Westhoughton this being his local garage which would vouch for him. He had bought this on 20 June 2003. As that garage was closed for refurbishment he purchased £10.00 worth of fuel on 28 June 2003 from Vic Jolley Wigan Road Westhoughton. A receipt was enclosed. There is also in the bundle a receipt for £30.00 fuel purchased at at 7.52p.m. on 29 June 2003 (later in the day that the Appellant was stopped) at Shell Hindley. The Commissioners noted that the receipts were from different filling stations even though the Appellant had originally told the officer that he used the same garage. The receipts had been produced subsequently although he had said earlier that he had no receipts. The receipt for the £10.00 worth of diesel was handwritten which the Commissioners considered unusual for a garage and it did not show which vehicle was being fuelled or who filled it.
6. The Appellant also said in his letter that he could not be held responsible for the traces of red diesel which were found within the tank of the vehicle as he had only just acquired it. He had however since taken steps to have all traces of rebated fuel removed and had subsequently purchased £30.00 worth of diesel from the Shell Garage at Hindley. This is documented with the £30.00 receipt referred to above.
7. We have in the bundle of documents before us the review letter of the review officer Miss Julie Logan. In addition Miss Logan has attended the hearing and given evidence to the tribunal. Her evidence to us has been essentially explanatory as to the procedures on taking a sample. She has told us that the officer draws the sample and first makes a "eye" test. He then carries out a chemical test for kerosene gas oil and the euro marker. All that is shown at this stage is positive / negative. To produce percentages there would have to be an analysis by a chemist and this is only sent off if the validity of the seizure is contested.
8. In his Notice of Appeal on 7 September 2003 subsequent to the review decision the Appellant set out his grounds of appeal as follows: " When I was stopped and tested for red diesel the officer told me it was about 20% red. If this is the case anybody buying a diesel vehicle can be found guilty of which it is not their fault. As I told the officers 2 1/2 weeks before was when I purchased the van".
9. It was Miss Logan's view as set out in her review letter that had the Appellant put into the vehicle the amounts of fuel shown by the receipts 27 litres of normal diesel would thus have been added to the fuel tank since purchase and this would have diluted the red colour; the colour had clearly been described as "red" in the officer's notebook. Had the vehicle been purchased with a full tank of fuel it would not have been necessary to fill it up to the extent indicated. The fact that the colour was strong rather than faint indicated that red diesel had gone into the vehicle recently; had it been faint and the vehicle just purchased we are told by Miss Logan that the officers would have given the buyer of the vehicle the benefit of any doubt. The Commissioners policy was also set out in the review letter that on the first offence of taking in and using rebated fuel the vehicle is nevertheless seized but restoration offered on terms as for instance in the case before us.
10. The legislation is clear. The Fuel Act provides that no rebated fuel is to be used as fuel for a road vehicle unless an amount equal to the rebate has been paid to the Commissioners and the penalties for misuse are set out under section 9 of the Finance Act 1994. Section 13(7) of the Fuel Act specifically provides as follows: " For the purposes of this section, a person is liable for heavy oil being taken into a road vehicle in contravention of section 12 (2) above if he is at the time the person having the charge of the vehicle or is its owner, except that if a person other than the owner is, or is for the time being, entitled to possession of it, that person and not the owner is liable". It is undisputed that the Appellant was the owner and driving the vehicle at the time of the stop and seizure. It is undisputed that there was red diesel in it. The officer was not satisfied that this could merely be discounted as dregs remaining from a previous ownership and even though the review officer had as she stated the power under section 152 of CEMA to mitigate the penalties as she might see fit she did not find anything in the information or evidence to depart from the Commissioners stated usual policy.
11. The role of the tribunal is to determine whether the decision of the Commissioners was one which could not reasonably be arrived at. We are satisfied that due regard was paid to Wednesbury principles and that due weight was given to all relevant matters that the Commissioners did not take into account any irrelevant matters and that they were aware of the applicable law. The decision was reasonable in the circumstances of the matter.
12. The appeal is dismissed.
13. In view of the non-attendance of the Appellant the Commissioners have sought costs by way of payment of Counsel's brief fee which has been put to us as £150.00 inclusive of Vat. We see no reason why costs should not follow the event and accordingly direct the payment of costs of £150.00 by the Appellant to the Commissioners.

MRS E GILLILAND

CHAIRMAN

MAN/03/8150