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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 >> Jones & Anor v Revenue & Customs [2005] UKVAT(Excise) E00901 (15 July 2005) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2005/E00901.html Cite as: [2005] UKVAT(Excise) E00901, [2005] UKVAT(Excise) E901

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E00901

EXCISE DUTIES — seizure of car and goods at Dover — 43kgs HRT — was importation commercial — was non restoration reasonable — yes — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

PHILIP JONES and LEONARD ARTHUR NASH Appellants

- and -

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Lady Mitting (Chairman)

Elizabeth MacLeod CIPM

Sitting in public in Birmingham on 25 April 2005 and 21 July 2005

The Appellants appeared in person

Ben Mills of counsel instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2005


 


DECISION
1. Mr Jones appeals against the decision, on review, of the Respondents, dated 18 August 2004, to refuse to restore to him excise goods and his motor vehicle, a Toyota Landcruiser T505 KCJ. Travelling with Mr Jones was a friend, Leonard Arthur Nash who is also appealing against the refusal of restoration to him of excise goods. As the evidence in relation to each appeal was in all major respects identical, we heard the two appeals together.
2. We heard oral evidence from Mr Jones and Mr Nash who represented themselves and, on behalf of the Respondents, we heard evidence from Officer Lisa Foad, whose decision it had been to seize the goods and vehicle and from Officer Raymond Brenton whose review decision it was to refuse restoration to both Mr Jones and Mr Nash. With the agreement of both parties, the order of proceedings was reversed and Mr Mills presented the Respondents' case first.

Background to the Appeal

3. The vehicle and the following excise goods were seized at Dover Eastern Docks on 13 May 2004:

Description	Quantity	Duty
Hand rolling tobacco	42 Kilograms	£4,387.74
Cigarillos	300	£87.21
Wine	26.5 Litres	£42.05
Beer	30 Litres	£18.33

4. Following the seizure, both Mr Jones and Mr Nash were given, amongst other papers, Customs Notice 12A (dated October 2002 and now replaced by an updated version dated October 2004). We refer to this more fully later on but at this stage, we merely note that the travellers returned letter B requesting restoration of the vehicle and their goods. Mr Jones gave as his reasons why the vehicle and goods should be restored:-

"P&O Card states you can buy any amount for personal use. Vehicle required urgently for work!! Goods were for two people and families and friends. Not an excessive amount".

5. Mr Nash gave as his reasons for restoration:-

"P&O Card says any quantity for personal and family consumption and gifts to friends"

6. Both men also wrote rather longer letters but by letters dated 8 June 2004, restoration to both Mr Jones and Mr Nash was refused, no reasons being given other than the usual reference to departmental policy.
7. A review of the decision was requested, further lengthy representations being made in correspondence by Mr Jones and Mr Nash and also by their solicitors Messrs Russell & Co by letter dated 21 July 2004. It fell to Mr Brenton to carry out the review and he notified Messrs Russell & Co by letter dated 18 August 2004 that he was refusing restoration. It is against this decision that the appeal lies.

The evidence

8. It was an Officer Whyte who first spoke to Mr Jones and Mr Nash at approximately 12.28 on 13 May 2004 as they disembarked from the ferry at Dover Eastern Docks. The extract from Mr Whyte's notebook recording the interview was produced to us. It was brief, recording names, dates of birth and passport numbers of both men. The recorded questions and answered then read:

"Q: Where have you been to?

J: Calais

Q: Just Calais

J: Yes

Q: What was the reason for the trip?

J: To get some booze at the hypermarket"

9. Mr Jones was asked by Mr Whyte if he agreed with the record, to which Mr Jones replied he did and he signed it. Mr Whyte then directed the vehicle to the vehicle hall where Mrs Foad spoke to Mr Jones and Mr Nash.
10. Mrs Foad asked them some preliminary questions in reply to which they told her they had been out for the day. She asked if they had any cigarettes, tobacco or drink, to which Mr Jones' recorded reply is "Yes, we have beer and wine and a little bit of tobacco". Mrs Foad then looked in the boot and observed seven boxes of tobacco. She asked whose it was, to which Mr Nash replied "some mine, some his and drink for my 50^th anniversary party". She then asked when they had last travelled and was told by Mr Nash that he hadn't and by Mr Jones, about a month ago. Mr Jones and Mr Nash then both signed Mrs Foad's notebook and they both agreed to stay for interview.
11. Mr Jones was interviewed by an Officer Johnson. He claimed ownership of four boxes of tobacco, a few bottles of wine and three cases of beer. He had paid cash – about £1,200 for them and he and Mr Nash would go "50 / 50 on the booze". He thought the tobacco goods would last him two years "as he didn't get down this way much". He had paid for the tobacco and Mr Nash would pay him back in the UK. He had last travelled three weeks earlier to sort out some business on properties in France. That had been the first time for twenty years. He made his cigarettes with a machine and smoked 20 a day, getting through one and a half – two pouches per week. In the UK, he paid £7.50 to £8.00 for a 50g pouch. When asked if he wanted to add anything, he said the money for the goods had come from his rental contracts; the goods were for his own use and he would not be selling them. He signed the record of the note.
12. In the meantime, a search of the vehicle had revealed, lying on the central console, receipts for the alcohol, from Carrefour at Coquelles and a credit card slip relating to Mr Nash's credit card and two identical receipts for the tobacco from English Tobacco Adinkerke in Belgium, each receipt being for 420 pouches of Golden Virginia.
13. Also found had been a sheet of paper written on both sides as follows:

"Jim 400 Marlborough

Mal 20 packs Golden V

2 packs Old Holborn

10 X Lambert / Butler

20 X B&H

On the reverse was written:

20 X B&H

25 X L&B

80 X G. Virginia

Jim 400 Marlborough

Mal (200 X Golden Virginia - £3.50)

2 packs Old Holborn

528 GV 700

216 L&B/M 300

356 B&H 500

£1100 1500"

14. Also found had been an envelope on which on one side there had been written:

"Rob £200

John £50

£250

John owes £50"

On the reverse side had been a list of seven dates in April and May 2004, level with each date there being an amount of pounds ranging from £200 to £835.

15. When these were drawn to Mr Johnson's attention, he asked Mr Jones some further questions. In relation to the sheet of paper containing names and amounts, Mr Jones said that when he had travelled three weeks ago, that was what people had asked him to get but as he didn't have the money then, he only purchased three cases of beer. In relation to the envelope, he said it was "An old bit of paper. A few months old. I had made some notes on it on who owes me what on rent. I put the cash in the envelope". Mr Jones then signed the further note.
16. Mr Nash was interviewed by Officer Whyte. He claimed ownership of the majority of the beer and three boxes of tobacco which were, he said, for him, his son and his brother … "I just give it away". He explained that Mr Jones had paid for the tobacco and he owed him about £700 for his share. He smoked two pouches a week; his son and his son's girlfriend smoked two to three and he didn't know about his brother to whom he would just give half a box. He thought the tobacco would last him about a year. He was retired; his wife did not work and his net monthly income was £800 to £1000. He had about £60,000 in savings. No one else had contributed towards the cost of the tobacco. Mr Nash then also signed the Officer's notebook. Mr Nash was also re-interviewed about the sheet of paper found in the vehicle. Having said that he didn't recognise it, Mr Whyte asked him what it was, to which he replied that it looked like a shopping list for tobacco goods.
17. After consulting Officers Whyte and Johnson, Mrs Foad concluded the goods had been imported for a commercial purpose and that the vehicle and goods should be seized. The reasons for her view were noted in her notebook as follows:

Mr Jones

i. Initial misdeclaration - claimed been to Calais

ii. Unrealistic consumption rate

iii. Shopping list of excise goods

iv. Unrealistic that the tobacco would stay fresh

Mr Nash

i. Didn't pay for the goods and goods owned by Mr Jones

ii. Excessive purchase for consumption rate

iii. Misdeclaration of goods

iv. Trip for buying goods for party, beer and wine minimal, alcohol lager and HRT.

18. Having been advised of the seizure, Mr Jones then requested to speak to Mrs Foad's Senior Officer and he was referred to Mr C Bate. Mr Bate noted in his notebook that Mr Jones had told him he needed his car back for his work in security and he had asked Mr Bate to exercise his discretion to return it to him. Mr Bate told him the quantity of tobacco was so huge it was above his discretion level and the following exchange then took place:

"J: That will last two years

B: It will go off before two years. You wouldn't buy chickens and put them away for two years.

J: OK, fair enough. I might be sharing it around the mess.

B: Well I suspected you were probably passing it on to other people."

19. Mr Jones put it to Mrs Foad in cross-examination that she had mis-recorded his answer as to what he had purchased. He said that he had in fact told her he had bought "a bit of wine, a bit of beer and a bit of tobacco", not "beer, wine and a little bit of tobacco" as recorded. Mrs Foad denied this possibility, saying she had written it down immediately after she had spoken to him. He also put it to Mrs Foad that when he had been subsequently interviewed, the Officer had told him the interview notes would only be sketch notes for reference and a lot of what he had said had not been properly recorded. Mrs Foad thought it unlikely that this had been said because the Officers were all trained to record everything accurately and contemporaneously and were also trained to tell travellers that everything they said would be recorded. Mrs Foad confirmed in cross-examination that Mr Jones and Mr Nash had been co-operative and there had been no concealment.
20. When Mr Brenton came to review the decision to refuse restoration, he had before him the seizure file, the notes of interviews and several letters from Mr Jones and Mr Nash and one from their solicitors, Messrs Russell & Co. Mr Nash, in a letter dated 23 May 2004, advised that the wine and beer were for his forthcoming 50^th Wedding Anniversary celebration, while the tobacco was "for myself and extended family and a few close friends". Mr Jones had provided proof of ownership of his vehicle and in a letter received 3 June 2004 stated he needed the vehicle back to carry equipment and personnel; to maintain his property and to move livestock on his small holding. Other undated correspondence refers to Mr Jones "becoming unemployed" and "forced on to the dole" because of an inability to get work.
21. Messrs Russell & Co, in their letter of 21 July 2004 stressed that neither Mr Jones nor Mr Nash had intended to sell the tobacco which was for their personal use, as defined. Neither of the two men had travelled previously with the intention of purchasing excise goods and that both men had been acting honestly and in good faith. They had been co-operative and helpful. Mr Jones had purchased only four packs of tobacco and it was therefore disproportionate to refuse restoration of the vehicle. The vehicle was essential to Mr Jones' employment and the decision to seize it had led to his unemployment and a substantial loss of income. Mr Jones had had to sign on for state benefits. This must amount to exceptional hardship. Russell & Co accepted that the Respondents' policy to refuse restoration of goods and vehicles was a lawful policy, providing the discretion was exercised based on all the circumstances. In this case there was exceptional hardship and the travellers were entitled to return of the goods as there had been no commercial purpose.
22. Other correspondence was more general in nature, stressing that no law had been broken; tax had already been paid in the country of purchase; the goods were for personal consumption or to be given as gifts; at no time had they seen a Notice 1; there was no indication anywhere of there being any form of limit to purchase of excise goods.
23. There was within our bundle a great deal of further correspondence from Mr Jones and Mr Nash which post dated Mr Brenton's decision and is not, therefore, strictly relevant to the issues before us.
24. Mr Brenton, in his review letter, summarised the facts of the seizure, the interviews and the correspondence from the Appellants and their solicitors. He set out the Respondents' policy in respect of restoration of goods and vehicles. Seized excise goods would not normally be restored. Private vehicles used for the improper importation or transportation of excise goods would not normally be restored but could be, in the discretion of the Respondents, in certain circumstances namely:

•    If the excise goods were destined for supply on a "not for profit" basis

•    If the excise goods were destined for supply for profit, the quantity of excise goods was small and it was a first occurrence

•    If the vehicle was owned by a blameless third party owner.

25. In his consideration, Mr Brenton made express reference to the following factors:

(a) Mr Jones' reply to Mr Whyte that they had only been to Calais, the purpose of the trip being to buy alcohol at the hypermarket whereas they had in fact been to Adinkerke to purchase a large quantity of tobacco. He pointed out that Mr Nash, who had been there at the time the statement was made, had not sought to correct it.

(b) Mr Jones' reply to Mrs Foad, again in the presence of Mr Nash, that they had purchased only a "little bit of tobacco". 42 kilograms could not be considered a little bit.

(c) The discrepancy between the statements of the two men as to who owned the alcohol. Was it 50 / 50 as suggested by Mr Jones or was it in the main for Mr Nash's party?

(d) The tobacco had been purchased by Mr Jones in cash. Cash payment was a common feature in importations for commercial sale.

(e) On Mr Jones' declared rate of consumption (20 per day) and on the assumption a pouch, when a machine is used, produces 80 to 100 cigarettes per day, Mr Jones' share of the purchase would last some six years.

(f) Mr Jones had told the Officer he normally paid £7.50 to £8.00 per pouch in the UK, whereas the retail price of a pouch of Golden Virginia was £9.00 to £9.50 which a regular smoker should have known.

(g) As Mr Nash had had his credit card with him, Mr Brenton infers from the fact that he did not use it for any of the tobacco that he did not own any of it.

(h) Mr Nash underestimated the amount that his share of the tobacco would cost (£700 rather than £900). After taking account of Mr Nash's personal consumption and his estimate that it would last him one year, 12.8 kilograms (or £640) were left to give away.

(i) The shopping list and envelope found in the car

(j) The commercial records available to Mr Brenton revealed that the crossings on Mr Jones' previous trip on 21 April 2004 almost matched those on this trip. He had booked in at Dover at 6.00 am and at Calais for the return at 11.07 (UK time). This did not, in Mr Brenton's view, leave sufficient time to sort out business properties but led him to believe that the purpose of that trip was as this one.

26. For all these reasons and given the huge quantity of tobacco involved, which Mr Brenton considered was "a commercial quantity", Mr Brenton believed that the goods were to be sold for profit and the car should not be restored, regardless of its value (£15,000).
27. Mr Brenton expressly referred to the case of Lindsay v Customs and Excise Commissioners (2002) EWCA 267. He cited the judgment of Lord Phillips MR at paragraph 63.

"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 their 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."

He also referred to the judgment of Judge LJ at paragraph 72:

"Given the extent of the damage caused to the public interest, it is, in my judgment, acceptable and proportionate that, subject to exceptional individual considerations, whatever they are worth, the vehicles of those who smuggle for profit, even for a small profit, should be seized as a matter of policy."

28. Mr Brenton went on to consider hardship but went on to say that one had to expect inconvenience as a result of having the car seized but that he did not believe that there were any exceptional circumstances in this case to put Mr Jones' suffering into the category of exceptional hardship.
29. In his oral evidence, Mr Jones told us his previous trip to France had been with a Mr Shanan Dick from New Zealand. Mr Dick had been looking to move to France and he and Mr Jones had gone across to research properties. A letter, purportedly from Mr Dick and dated 10 March 2005, was produced to us. This letter supported the above and also added further down:

"While we were waiting for my passport to be cleared (as I am a New Zealand passport holder) I also scribed some costing figures down on an envelope. I was working out cost value of tobacco and seeing how much market up value is made on retail value in the UK".

30. Mr Jones told us that he had bought nothing on this previous trip, although he had been asked to bring back some goods for friends but he hadn't done so because he hadn't any money. He had written down what the friends wanted on a sheet of paper, which he had taken with him, and it was this sheet which had been left in the vehicle that the intercepting officers found. In cross-examination, Mr Jones accepted that the "calculation" on the bottom of this sheet of paper was his and was written by him. He described it as a "doodling" done in the car with Mr Dick – they had been calculating what people could make if they were to resell goods which they had bought abroad. Mr Jones denied it represented any business done by him, telling us he had no need of the money and would not risk everything for a few hundred pounds.
31. Following on from this trip, Mr Jones decided to go back to France. He wanted, he told us, to collect some more information from Estate Agents on properties and also to restock as his beer and tobacco levels were getting rather low and there was a summer of sport coming up. He also knew that Mr Nash wanted to stock up with alcohol for his forthcoming wedding anniversary party so suggested they should go together. On arrival in Calais, they visited the hypermarket, thought the prices were on the high side and as they could not get the tobacco they wanted at the hypermarket anyway, they asked around and were directed to Adinkerke. They found tobacco there to be even cheaper then they had thought. Mr Nash had wanted a couple of boxes, as had Mr Jones, but due to its being so cheap, Mr Jones threw in another couple of boxes. He did volunteer in cross-examination that he may have been a bit greedy or gone a bit over the top in purchasing so much. He confirmed in cross examination that at the time he had smoked about twenty cigarettes a day, "sometimes more, sometimes less" and that his entire share – four boxes – had all been for him. Mr Jones, at his suggestion, paid cash for all the tobacco and Mr Nash would pay for the alcohol and they would balance up the trip later. Having purchased tobacco, they returned to the hypermarket in Calais, purchased their alcohol and returned to Dover where they were intercepted.
32. During his evidence in chief, Mr Jones made much of the fact that on asking Officer Johnson if his interview was to be recorded, he was told that this would not be necessary because the notes being taken were only sketch notes. Mr Mills took this point up in cross-examination when Mr Jones remained adamant that that was what had been said but he also accepted that the interview notes were accurate and contained everything that had been said.
33. The envelope found in the vehicle was, we were told, used to collect rents from properties. Mr Jones owned five properties in Spain and ten in the UK. All were let out and the majority of rents collected in cash. He received approximately £3,500 per month from the UK properties alone. The names and figures on the envelope related to the rental collections and the cash he had with him on this trip originated from the rental payments.
34. Mr Jones was asked in cross-examination why he had told the intercepting officer he had been only to Calais. Mr Jones said the question put to them had in fact been "Where have you come from?" to which he was replying quite truthfully when he said "Calais". Mr Jones also explained that his job at the time of the interception was in security and his principal work involved meeting and escorting VIPs which he couldn't do without his vehicle and he had therefore lost work as a result. He had "signed on" to secure the continued payment of his national insurance stamp, not to collect benefits which he had not done. His use of the expression "on the dole" in correspondence had been a figure of speech. As to his solicitors' contention that he had to sign on for state benefits, it was no concern of Mr Jones what the solicitor had written and he was not responsible for the solicitors' wording. The rental income from his properties was used to pay the mortgage on the properties and was not profit to him.
35. Mr Nash's evidence in chief tallied largely with that of Mr Jones. His evidence was slightly confused on why he had made the trip. His answer initially to Mr Mills was that the purpose of the trip had been just for the day out and to buy alcohol for his party, no mention of purchasing tobacco. Later on, however, he added the purchase of tobacco into the purpose of the trip. He confirmed the arrangement that Mr Jones would pay for the tobacco; he, Mr Nash, would pay for the alcohol and they would settle up later. He could have paid for the tobacco himself but would have had to have done so by credit card on which he would have incurred a charge. He had not intended to buy as much tobacco as he did but had not realised until he saw it how cheap it was. Mr Nash described the purchase of the tobacco as a bonus.
36. Mr Brenton, in his evidence, went through his review letter and reiterated the reasons for his decision to refuse restoration. He accepted in cross examination by Mr Jones that the cash which Mr Jones had with him did originate, as Mr Jones had told him, from his rental collections and that given that, it was reasonable for Mr Jones to have had that amount of cash on him on the trip.

Our jurisdiction

37. Mr Mills submitted that it was not open to the tribunal to reopen the question of whether the goods had been purchased for a commercial purpose or for own use. That issue had been determined, in the absence of a challenge to the seizure, by the deeming provision in paragraph 5, schedule 3 CEMA 1979. Mr Mills recognised that in certain circumstances, own use could be reopened but only if that would not be an abuse of the process (Gascoyne v Her Majesty's Customs and Excise 2004 (EWCA) Civ 1162. Mr Mills contended however that in this case it would be an abuse because both Appellants had had the opportunity to challenge the legality of the seizure but had opted not to do so. They had merely sought restoration. To consider this submission we go right back to the Appellants' first post seizure communication with the Respondents. When their goods were seized, they were each given booklet 12A (dated October 2002). The evidence of Mr Nash and Mr Jones, and we see no reason to doubt this, is that they were so upset, not to say angry, at the seizure that on being given the booklet, they walked straight across the Customs Hall to the nearest desk, borrowed a pen and, as all they were concerned about was getting their goods back, they did not stop to read the notes, they merely looked what was needed to be done to get their goods restored, completed letter B, requesting restoration and handed that in there and then. Mr Nash told us that they were not even aware at the time that there was any such thing as condemnation proceedings.
38. The October 2002 version of booklet 12A is by no means clear and not nearly as clear as the re-written version now in force. The options given to a traveller are in the following form:

Option	You can …	Further details are in
1	If you do not agree that the vehicle and/or goods should have been seized you can challenge the seizure. This challenge process usually takes place in a Magistrates Court, and is called condemnation. If you are successful in the condemnation hearing the items will be returned, or you will be offered compensation if the items have been disposed of in the meantime.	Section 2
2	If you accept that we were entitled to seize the items, or even if you do not, you can still ask us to consider returning the vehicle and/or the goods. This process is called restoration. If we do agree to restore the items we will normally charge a fee.	Section 3
3	If you are unhappy about the way we dealt with you, you can make a complaint.	Section 4

39. The only option referring to restoration is option 2. The travellers were thus referred to section 3 of the booklet which goes through the procedure for seeking restoration. There is nothing anywhere in the booklet that we could see to indicate that by choosing to seek restoration only, a traveller would have lost any right which he had had to argue that the goods were for his own use – that by failing to challenge the seizure, this would already have been decided against him.
40. Against this background, we do not believe it can be an abuse of the process for us to allow the issue of own use to be argued before us. Through no fault of their own, the tribunal is the first forum and the Appellants' first opportunity to put their case, their case quite simply being that the goods were purchased for their own use.
41. We would also make the point that both Appellants in their letter B specifically stated that the goods were for their own use. The Respondents were therefore immediately on notice that this was to be their case. At the very least, it was in our view incumbent upon the Respondents to seek clarification from the Appellants as to whether or not it was restoration they were seeking or whether they wished to challenge the seizure as well. They could then have been pointed in the correct direction.
42. For these reasons we believe the Appellants are entitled, before us, to raise and argue the issue of own use and we will hear and consider their evidence.
43. The jurisdiction of the tribunal is limited in the terms set out in section 16(4) Finance Act 1994 to the consideration of the reasonableness of the decision under appeal. The test of reasonableness requires the tribunal to ask whether the decision was one which no reasonable panel of Commissioners could have come to; whether some irrelevant matter had been taken into account; whether some matter which should have been taken into account had been ignored or had there been some error of law.
44. The burden of proof is on the Appellants. They have to satisfy us on a balance of probability that Mr Brenton's decision was unreasonable. Only if they do that can we allow the appeal.

Conclusions

45. Mr Nash and Mr Jones submitted that the seizure was an infringement of their rights and disproportionate. It was never their intention to sell the goods and the venture had not been commercial. In addition, Mr Jones had been caused hardship by the seizure of the vehicle.
46. The first significant factor in this case is the amount of tobacco imported. Mr Mills sought to suggest it all belonged to Mr Jones and that Mr Nash had gone along as cover. This was denied by both Appellants and although there is certainly evidence to point to Mr Mills being correct (that Mr Jones had paid for the entirety and to date had not been fully repaid; that Mr Nash in interview thought that his share of the purchase would only cost £700 against the £900 it should have been) we will proceed on the assumption, that as claimed, Mr Jones owned 24 kg and Mr Nash 18 kg. These amounts are just too great to be for the personal use (as defined and to include gifts) of the Appellants, looked at in the context of what we were told the Appellants would be doing with the tobacco. Mr Jones had said in interview and repeated in his evidence that his entire purchase was for him. On his consumption rate, again given in interview and repeated in evidence, his share would last six years. In the form in which the tobacco was purchased, Imperial Tobacco say it would last 12 months. Mr Jones made no suggestion that it was to be stored in any particular way and even allowing for a difference in opinion as to whether or not the 12 months is accurate, six years is clearly way beyond its shelf life. Equally, Mr Nash, given his stated consumption, would be left after one year, with 12.8 kg either to give away or to store – equally unlikely. It is not credible, on the Appellants' evidence, that this amount of tobacco was for the own use of the Appellants.
47. There are then the utterly misleading replies which Mr Jones gave to Mr Whyte and Mrs Foad. Mr Jones told us that the question had been not "Where had you been to?" but "Where have you come from?" and his answer of Calais had therefore been correct. If that had been so, why would Mr Whyte have gone on to say "Just Calais?" and the answer of "Yes" to this second question is quite clearly incorrect. The Appellants had not been just to Calais, they had been to Adinkerke. Equally, why tell Mr Whyte the purpose of the trip had been to get some booze at the hypermarket? Mr Jones' purpose in making the trip had been, he told us, twofold, to pick up sales particulars from Estate Agents and to restock tobacco and alcohol. In giving the answers he did, the clear implication is that Mr Jones was seeking to conceal the tobacco purchase. He was concealing their trip to Adinkerke where the tobacco had been bought and was concealing the very fact of its purchase. These answers were given in the presence of Mr Nash who, knowing they were wrong, did not seek to correct them.
48. Further misleading replies were given to Mrs Foad. Mrs Foad had asked if they had any cigarettes, tobacco or drink. The recorded reply is that Mr Jones said that they had a "little bit of tobacco". Mr Jones told us that in fact his reply had been that they had purchased "a bit of beer, a bit of wine and a bit of tobacco". Mrs Foad thought this unlikely but even if it were so, the reply is still nothing short of misleading because it seeks to equate the amount of tobacco purchased with the amount of alcohol. We understand that £70 was spent on alcohol and over £2,000 on tobacco.
49. The evidence we heard in relation to the "shopping list" is contradictory. We can make no findings as to whether or not the goods listed had been purchased on the previous trip and that is not an issue before us, but the sum at the bottom of the list was quite clearly a calculation as to how much profit could be, would be or had been made on the goods listed. Mr Dick, in his letter, said that he made the calculation. Mr Jones accepted that the calculation was his. Certainly, to our untutored eye, the writing looks to be that of Mr Jones and we therefore assume that it was written by Mr Jones and Mr Dick was lying in an attempt to save Mr Jones from blame. This of course raises a question over the credibility of the remainder of the letter.
50. Mr Brenton quite rightly thought all the above matters were highly significant and from them he formed the view that this had to have been a commercial importation. This, in our view, is an irresistible conclusion. One or two other factors were not quite as Mr Brenton had believed them to be. Mr Jones explained that the writing on the envelope related to his rent collections, this evidence not being challenged in cross examination by Mr Mills. We also heard Mr Nash say that he did not want to pay for the tobacco by credit card as it would have incurred a charge. If this is the case, and Mr Jones had the cash available, then it would seem perfectly reasonable for payment to be made in cash. However, these two matters are of minor importance. They are clearly peripheral and do not detract in the least from the overall conclusion that this was a commercial purpose. Mr Brenton's view was perfectly reasonable, and indeed, as we say, irresistible.
51. Mr Brenton went on to consider Mr Jones' plea of hardship. Mr Brenton had been led to believe by Mr Jones and by his solicitors that Mr Jones had had to sign on the dole and was in receipt of state benefits. We should say that we do not criticise the solicitors for the wording of their letter as they presumably were reiterating the position as they had understood it to be. Even given this, Mr Brenton did not consider a case of hardship had been established. We now know, and we see no reason to doubt this, that Mr Jones in fact was signing on only to secure payment of his stamp and he did not claim benefit because his income and capital were over the threshold. Even accepting that a good part of the rental income goes in the repayment of mortgages on the properties, it is quite clear that Mr Jones did have a source of income, whereas Mr Brenton believed that he had not. This can only serve to make even weaker the claim for hardship. On the basis that hardship is only to be expected, we find nothing in Mr Jones' circumstances to point to the hardship being so excessive as to render non-restoration unreasonable.
52. We finally look at the issue of proportionality. The non-restoration of goods brought in for a commercial purpose cannot conceivably be disproportionate. This is not inevitably so in relation to vehicles but in this case we can do no better than to refer to the Lindsay judgment and to the passages quoted in paragraph 27 of this decision. We can find no exceptional considerations in this case which would render the non-restoration disproportionate and indeed Mr Jones did not seek to argue that there were any.
53. In summary, we find Mr Brenton's decision to refuse restoration of both goods and vehicle to have been perfectly reasonable. The factors he took into account were all relevant and we have heard of none which he should have considered but did not. The appeal is therefore dismissed. The Respondents made no application for costs and we make no order.

LADY MITTING

CHAIRMAN
Release Date: 4 August 2005

MAN/04/8104 & 8105