E01096
EXCISE DUTY – seizure – tribunal's jurisdiction – tribunal's fact finding powers – challenge to grounds for seizure – own use - abuse of process? – no – appeal allowed.
MANCHESTER TRIBUNAL CENTRE
DAVID AND MANDY OWENS
Appellants
THE COMMISSIONERS OF
HER MAJESTY'S REVENUE AND CUSTOMS
Respondents
Tribunal: Richard Barlow (Chairman)
Susan Stott FCA CTA
Sitting in public in York on 10 January 2008.
The appellants in person.
Mr Nigel Clive of counsel instructed by the respondents' solicitor for the respondents.
© CROWN COPYRIGHT 2008
DECISION
- This is an appeal against the respondents' refusal to restore to the appellants 10,000 cigarettes and 24 kilograms of hand rolling tobacco seized from the appellants at Coquelles on 18 November 2006. The decision to refuse restoration was given on 8 January 2007 and the appellants requested a review of that decision. The review decision was notified by a letter dated 28 February 2007 which says that the review was requested on 8 January 2007 which, if correct, would mean that the review was not conducted within the 45 days required by section 15(2) of the Finance Act 1994 and the appeal would be against a deemed confirmation of the refusal to restore the goods. It appears that the request for the review was actually made by a letter dated 19 January 2007 so that the review was within the permitted time. Whether the appeal is against a deemed refusal or an in time review decision to the same effect makes no difference to the tribunal's jurisdiction and the appeal is properly constituted.
- The goods in question were seized in the presence of the appellants so that a Notice of Seizure was not required under paragraph 1 of Schedule 3 to the Customs and Excise Management Act 1979. A Seizure Information Notice addressed to Mr Owens has been produced but none addressed to Mrs Owens has been produced though warning letters have been produced addressed to both appellants (notifying them that the seizure was without prejudice to other unspecified action that might be taken against them). It appears from entries in the notebook of the officer who principally dealt with Mrs Owens that the goods were regarded as having been seized jointly from both appellants.
- The motor car being driven by Mr Owens was also seized but it was owned by a third party and has been restored.
- The goods were seized on the grounds that they were held for a commercial purpose.
- In principle, section 2(1) of the Tobacco Products Duty Act 1979 charges a duty on all tobacco products imported into the United Kingdom and by reason of regulation 12(1) of the Tobacco Products Regulations 2001 the excise duty point is when the goods are charged with duty, which is the time of importation in the case of imported goods. Regulation 13(1) requires the person holding the goods at the excise duty point to pay the duty.
- However, where tobacco products are acquired for his own use in another European Union Member State by any person who transports them to the United Kingdom the excise duty point is delayed, by regulation 12(1A), until the goods are held for a commercial purpose. If no such holding for a commercial purpose ever occurs, though the goods are charged with the duty by reason of having been imported, it never becomes payable because the duty point is not reached.
- By reason of regulation 12(1B)(b) own use includes use as a personal gift but paragraph (c) deems transfer to another person for money including reimbursement of expenses to be for a commercial purpose and if the goods were duty free in the other Member State that also deems them to be for a commercial purpose.
- It is not in issue in this case that the goods were acquired duty paid in Belgium and, although Coquelles is in France, article 20(A) of the Channel Tunnel (Customs and Excise) Order 1990 extends, to goods brought into the Control Zone (usually referred to as Coquelles), the commissioners' power under section 139(1) of the Customs and Excise Management Act 1979 to seize goods as liable to forfeiture. Article 5(2) of the Order treats goods as being imported when they are brought into the Control Zone.
- The appellants' case is very straightforward. They contend that the goods were for their own use in part literally and in part as gifts for which they would not be reimbursed. The commissioners' case is principally that the appellants cannot now raise the issue whether the goods were for their own use as that would be an abuse of process in light of the fact that that issue could have been litigated in the Magistrates Court (in fact the respondents have the option under Schedule 3 to the Customs and Excise Management Act 1979 of commencing condemnation proceedings in either the High Court or a Magistrates Court).
- It was put to the appellants that the goods were not for their own use but Mr Clive said in his closing address that, although the tribunal might well have sympathy for the appellants (which we took to mean that the tribunal might find that the goods were for the appellants' own use), a challenge to the commissioners' view that the goods were not for own use was not a permissible ground of appeal in a case like this, essentially because that is an issue that can only be decided in condemnation proceedings. In other words the respondents are prepared to succeed in this tribunal, indeed argue that they must succeed, even if that means that goods that should not have been seized are retained by them.
- Mr Clive also contended that the tribunal has limited fact finding powers so that the tribunal should not even consider as a matter of fact whether the grounds for seizing the goods ever existed. He did not say so, but by taking that course, if a miscarriage of justice has occurred, the tribunal would save the commissioners the embarrassment of being shown to have perpetrated it.
- Mr Clive cited the case of Gascoyne –v- Customs and Excise Commissioners [2005] Ch 215 as authority for the proposition that the tribunal has limited fact finding powers. We hold that submissions to be wrong. In the case of Gora –v- Customs and Excise Commissioners [2004] QB 93 Mr Kenneth Parker QC, counsel for the commissioners, is recorded (at paragraph 38 of the judgement of Pill LJ) as having said:
"[The tribunal] satisfies itself that the primary facts upon which the commissioners have based their decisions is correct. The rules of the tribunal and procedures are designed to enable it to make a comprehensive fact-finding exercise in all appeals".
Pill LJ endorsed that as correct in paragraph 39.
- In Commissioners of Customs and Excise –v- David Weller [2006] EWHC 237 (Ch) Evans-Lombe J was hearing an appeal by the commissioners against a tribunal's interlocutory order that an appeal to the tribunal could proceed where there had not been condemnation proceedings. During the course of the judgement he said (at paragraph 23) that at the full hearing the tribunal would have to consider the facts including those relating to abuse of process more fully than had been the case in the interlocutory hearing and added:
"That tribunal may conclude, as a step in arriving at its decision that in all the circumstances Mr Weller should not be allowed to challenge the validity of the forfeiture. Though it is unlikely to do so if it was going to allow Mr Weller's appeal".
That last remark makes it clear that the tribunal can find the full facts, including those relating to the substantive merits of the appeal, even at the stage in its reasoning where it is considering whether the appeal can be allowed to proceed.
- We accept that the tribunal might decline to make findings of fact about matters that are irrelevant to its decision, as might any first instance court or tribunal, but to say that it has limited fact finding powers goes too far.
- In the Gora case the court of Appeal had held that the only Court in which an importer could challenge a seizure of goods was a Court in which condemnation proceedings were instituted. It followed that the tribunal had no jurisdiction to consider a case where the Court had condemned the goods as forfeit and that a deemed condemnation, that is to say a case where the owner of the goods had not required the commissioners to begin condemnation proceedings within the permitted time, would be in the same position as one where there had been proceedings.
- In Gascoyne the Court of Appeal pointed out that that Court need not have made that holding in Gora (in legal terms that it was obiter dicta) in order to reach its decision but more importantly that, although it was correct as a matter of UK law, it did not necessarily afford an importer all the rights available to him in light of the European Convention on Human Rights. We would add that those rights might also be available as a matter of European Union Law given the terms of Council Directive 92/12/EEC.
- Accordingly the Court of Appeal held as follows in the Gascoyne case (see paragraphs 44 – 57 of the judgement of Buxton LJ):
- The reason why UK law would not permit the issue of the correctness of the seizure to be considered by the tribunal when it should have been considered by the courts is not the literal interpretation of the legislation but the principles of procedural law known as res judicata and abuse of process.
- The owner of the goods can, because of the rights conferred by the European Convention on Human Rights, re-open the question of the seizure in the VAT and Duties Tribunal where the goods have been condemned by the deeming provision in paragraph 5 of Schedule 3 to the Customs and Excise Management Act 1979 (i.e. where the owner has not required the commissioners to begin condemnation proceedings within the month allowed) but that right will not apply where a Court has actually condemned the goods following a finding that they were not for own use.
- The situation where the owner of the goods has required the commissioners to commence condemnation proceedings by giving a notice of claim under paragraph 4 of Schedule 3 to the Customs and Excise Management Act 1979 but withdraws that request either before the commissioners commence the condemnation proceedings or withdraws from those proceedings after they have been commenced, but before the hearing, is not specifically referred to in the judgement of Buxton LJ.
- Condemnation proceedings are in rem and once the owner of goods has served a notice of claim and thus required the commissioners to begin condemnation proceedings it is arguable that an order of the Court is necessary even if the owner purports to withdraw from the proceedings, though no doubt in such cases the Court would decide the matter summarily without hearing evidence. Where the owner withdraws or purports to withdraw the notice of claim before the commissioners have actually instituted those proceedings it is less clear whether an order of the Court would still be needed. Paragraph 6 of Schedule 3 to the Customs and Excise Management Act 1979, which says that the commissioners "shall take proceedings" once a notice of claim has been given, suggests that an order would be needed even where the owner withdraws the notice of claim. In this case proceedings were commenced after the appellants had said, in a letter dated 14 March 2007, that they wished the commissioners "to accept termination to withdraw my appeal", so it appears the commissioners do take the view that, once a notice of claim has been given, an order from the Court is still needed.
- Although Buxton LJ did not refer to those circumstances directly and did refer specifically only to the case where there has been a deemed condemnation by reason of a failure to serve a notice of claim, we hold that in principle at least, the tribunal can deal with cases where the notice is withdrawn and the condemnation proceedings, if any, then go by default.
- Mr Gascoyne had argued that a letter he had written to the commissioners should have been taken to be a notice of claim but the Court held against him on that issue so that the goods in that case had been condemned as forfeit under the deeming provision only and it was not strictly necessary for the Court to consider what the position might have been if he had given a notice of claim and withdrawn it before the proceedings had been commenced or had withdrawn from the proceedings after they were commenced but before they were heard.
- In paragraph 54 of the judgement Buxton LJ said:
"As it seems to me, for an importer to be completely shut out in the only tribunal before which he has in fact appeared from ventilating the matters that are deemed to have been decided against him because of paragraph 5 of Schedule 3 does not adequately enable him to assert his Convention rights". (Emphasis added).
The reference to the only tribunal before which he has appeared would encompass a case where there had been a notice of claim which has been abandoned.
- In addition, in paragraph 46 of the judgement, Buxton LJ refers to cases where the owner has failed in condemnation proceedings or let them go by default as cases where UK domestic law would not allow a "second bite at the cherry" and then he goes on to consider the Convention rights before contrasting in paragraph 51 a case where the Court has made an actual finding in condemnation proceedings with a case where they have gone by default. It is unclear whether the reference to "by default" was intended to apply only to the case where there has been a deemed condemnation because no notice of claim was given but that phrase seems apt to include a case where the owner did not contest those proceedings, at least if that led to them being withdrawn or decided summarily without consideration of the evidence.
- The reference in paragraph 47 of the judgement to "normal English law rules of res judicata or abuse of process" as the basis for the conclusion that in UK domestic law the owner cannot challenge the seizure in the tribunal must encompass at least some cases where Court proceedings have been commenced because the statutory deeming provision is not an example of res judicata. The implication from that is that in Convention Law the situation may be different in cases where res judicata might apply in UK domestic law.
- Clearly an appellant cannot challenge or contradict, in the tribunal, an actual finding of the Magistrates Court or the High Court but we conclude that, subject to any question of abuse of process or similar considerations, the appellants can raise the issue of own use in this case which has certainly not been the subject of substantive consideration by the Courts.
- The facts relevant to the question of abuse of process appear to us to be as follows. The goods were seized on 18 November 2006 and on 1 December 2006 the appellants wrote to the commissioners. That letter refers to a claim they had already submitted, which we have not seen, but either that claim or the letter of 1 December was taken as a notice of claim under Schedule 3 to the Customs and Excise Management Act 1979.
- On 8 January 2007 an officer wrote to the appellants replying to a letter in which they had requested restoration of the tobacco goods (the car had by then been restored to its owner). The officer refused to restore the goods but informed the appellants that they had a right to request a review of his decision within 45 days. On 15 January 2007 another officer writing from the same address wrote to the appellants noting they were appealing the seizure of the tobacco goods. We take the reference to appealing to be a reference to the giving of a notice of claim. He explained that he had carried out an independent review of the seizure and was confirming that the Commissioners would be contesting the claim in the Magistrates Court and that the commissioners would be commencing proceedings in a Magistrates' Court near to where the seizure occurred. He added that: "if the Court finds that the things should be condemned as liable to forfeiture HMRC will usually ask for a contribution towards their costs" and that it "is likely to be in the region of £1500". That letter implies, at least, that if the appellants withdrew their claim within 14 days no proceedings would be commenced (contrary to the inference to be drawn from the fact that proceedings were commenced after the claim had been withdrawn by the letter of 14 March referred to in paragraph 17 above) but that if they did not withdraw within 14 days then proceedings would be commenced and costs would be claimed even if they withdrew later.
- On 28 February 2007 the commissioners wrote to the appellants from their Plymouth office giving the review decision in respect of the request for restoration promised on 8 January 2007. That review decision ends by saying that the appellants can appeal the decision to the VAT and Duties Tribunal and giving the address of the tribunal.
- As already noted, the appellants wrote to the Dover office on 14 March 2007 withdrawing the "appeal" which was taken to be a reference to the condemnation proceedings and saying that "this should not be taken to be any acceptance by me that the seizure was lawful or a correct use of power by the officials concerned at the time the goods was seized". They added "carrying on with this appeal is exhausting and financially costing us".
- On 3 May 2007 the commissioners obtained a summons at east Kent Magistrates Court sitting at Dover against Mrs Owens (we have not seen a summons against Mr Owens) and wrote to her, in a covering letter, making it clear that two attendances would be necessary at the Court and saying that if she was unsuccessful she may be ordered to pay all or part of the legal costs incurred by the commissioners of "not less than £1500". She was given two options in tick box form one agreeing that she no longer wished to contest this case and agreeing to customs asking the court to give them an order enabling them to keep the goods seized from her (which she ticked) and another box saying she wished to contest it (which she left blank). That form contained another reference to the fact she may be ordered to pay not less than £1500 costs if unsuccessful.
- She had also been told about the claim for costs in a Notice issued at or around the time of seizure of the goods.
- Whether Mr and Mrs Owens were being told that the costs claimed would be £1,500 each is not clear.
- The appellants were faced with the prospect of two return journeys from North Yorkshire to Dover and the prospect of a costs order of possibly as much as £3,000 (which exceeds the cost of the goods) if unsuccessful. The wording of the notices and letters referring to the costs appear to be intended to encourage the appellants to think that the award of costs at that level would be likely to be made more or less as a matter of course. The wording in the letter of 15 January 2007 is: "The court will be invited to make an award towards the costs incurred, which is likely to be in the region of £1500". Any lawyer reading that would know that what the Court awards may not be what the successful party seeks but we are quite satisfied that the appellants did not know that and the phrase "invited to make" seems to carry an implication that the application would usually be accepted by the Court. The phrase "towards the costs" also suggests that the actual costs would be more so that the award of £1500 would be easily justified.
- Mrs Owens also told us that a Customs Officer had told her that an appeal to the Court would be bound to fail and we find that evidence to be truthful.
- Mr and Mrs Owens had taken legal advice from a solicitor and they told us that he had advised them the Court would find against them because the tobacco products were over the guidelines. We accept that evidence was truthful. That advice was incorrect, because the guidelines are just that, and a person can bring unlimited quantities of duty paid goods to the UK provided they are for their own use, as defined.
- We regard it as particularly relevant that the appellants withdrew their notice of claim (in so far as they were able to) on 14 March 2007 which was only days after they had been told in the letter of 28 February 2007 (the review decision under appeal) that they could appeal to the VAT tribunal.
- That letter does attempt to distinguish between the powers of the Courts and the tribunal in the way the commissioners have argued the case before us. There is no doubt in our view that a lay person would have real difficulty in understanding what was being said and according to our holdings at paragraphs 14 to 24 above it was not even correct. The relevance of that letter to the abuse of process argument is that the appellants could not have been expected to understand that they were being told that withdrawing the condemnation proceedings would preclude them from arguing, in the tribunal, that the goods were for their own use. Even to a lawyer reading it the letter is misleading because although it quotes paragraphs 46 and 47 of Buxton LJ's judgement in the Gascoyne case the quotation omits the second sentence of paragraph 46 which begins with the words "So far as domestic law is concerned …" and the letter does not then go on to deal with the part of the judgement from paragraph 49 in which Buxton LJ turns to consider (and contrast) the traveller's Convention rights.
- We therefore hold that an abuse of process or similar concept does not arise and the appellants are not precluded from raising the question of own use in this tribunal on that ground.
- We turn therefore to the evidence.
- No witnesses were called by the respondents but a witness statement was read from Mr Cawthraw, the reviewing officer, and he produced the correspondence and the notebooks of the two officers who had principally dealt with the appellants at Coquelles. Mr and Mrs Owens gave their evidence in a sensible and clear manner and were cross examined. Their evidence was not shaken by cross examination. No specific errors, discrepancies or exaggerations came to light in cross examination. It was clear that Mr and Mrs Owens felt a strong sense of injustice in the way in which they had been treated and we found that to be genuine. Our finding is that their evidence is credible and we believe it to be the truth.
- Mr and Mrs Owens told us that the tobacco and cigarettes that were seized was partly for their own use and partly to be given as Christmas presents to friends and family without repayment. They had saved money during the year 2006 at the rate of £500 a month each and for the first few months of the year they paid that amount into a Bradford and Bingley account but from March onwards they dropped the deposit to £250 a month and kept the other £250 as cash in a safe at home. They produced statements from Bradford and Bingley accounts that bore that out.
- The trip to Belgium that features in this case was intended as a means of buying Christmas presents for friends and family and to buy tobacco for their own use. Some of the presents were to be in the form of tobacco or cigarettes. Mrs Owens had made a list in a spiral notebook 3 pages extracted from which were produced by the respondents. The respondents had come into possession of this notebook when they interviewed the appellants. Mrs Owens had mentioned, during interview, that it was in the car.
- The first page from the notebook is headed "Boxing Day" and is quite clearly a shopping list or plan for a party on that day. It refers to foodstuffs such as pork pies and crisps (which the appellants did not buy on their trip to Belgium) and drinks including alcoholic drinks that were not bought in Belgium. That page had certainly not been completed with a view to supporting a concocted story should the Owens be stopped at Customs. The other two pages were headed "Xmas List" and contained a list of names next to which were written items such as watch, chain, perfume and gift voucher which clearly were references to presents and also references to "bacca" against some of the names, sometimes in conjunction with other non-tobacco items.
- The genuineness of the list was challenged by the respondents in the review on the basis that the list would have required 33.5 Kilograms of tobacco to make the gifts mentioned whereas the appellants had only purchased 24 Kilograms. We regard that as being of little relevance as, unless the people on the list had seen it, they would not know that the gifts were less generous than they would have been. More to the point, had the list been concocted with a view to deceiving a Customs officer, if challenged, it might be expected that it would tally exactly with the tobacco actually purchased.
- The respondents relied on what they termed inconsistencies in the interviews of the appellants.
- The first point made in the summary of the review decision was that Mr Owens was inconsistent in his replies to the officer's questions about use of tobacco which the review officer summarises as follows:
Mr Owens said he smokes "baccy, sometimes cigarettes" later "maybe 40 cigarettes" per day "and maybe some tobacco". Later still Mr Owens said he smoked "40 cigarettes and "maybe, what a pouch of tobacco". Mr Owens then confirmed he smoked "40 cigarettes and less than a pouch of tobacco" on a normal day.
- In fact that summary is inaccurate. When first asked about tobacco consumption Mr Owens said (as recorded in the officer's notebook) "Backy sometimes cigs?", the question mark makes it clear he did not intend this as a definitive statement and that the officer took it that way. Then he said, in answer to the question "How much do you smoke a week?", "I don't know, 40 cigarettes a day and maybe some tobacco". The review officer has separated those two statements to make it appear they are cumulative but in light of the earlier answer that Mr Owens smokes cigarettes "sometimes", with the inference that he also smokes tobacco sometimes, we do not regard that as stating that he smokes both every day. Later he said in answer to the question "How many cigarettes do you smoke a day on average" he said "If just cigs just 40" which bears out what we have concluded about the previous answer. The review officer does not regard that answer as relevant in his summary. We do. Then he was asked "And how much tobacco do you normal smoke on an average day – hand rolling" and replied "Maybe what a pouch. I won't smoke a full one in a day". Finally he was asked "So on an average day you will smoke 40 cigarettes and less than a pouch of hand rolling tobacco" and he replied "Roughly". Again the review officer did not refer to that reply in the summary of the review or indeed the summary of the interview. The answer "roughly" is entirely inconsistent with the allegation that Mr Owens had made definitive but contradictory statements about his consumption.
- The review officer relied on the alleged fact that Mrs Owens said Mr Owens smoked 15 to 20 per day. Again the exact wording of the review is worth setting out and then the actual replies as recorded. The review says:
"Mrs Owens said she smokes a total of 15 roll-ups and tailor made cigarettes combined, on an average day. She said that Mr Owens smoked about the same, 15 to 20 per day as an estimate".
That statement by referring to "combined" in the case of Mrs Owens and "about the same" in the case of Mr Owens appears to suggest that Mrs Owens said that Mr Owens smoked 15 to 20 cigarettes a day as a combination of ready made and hand rolled cigarettes. What she actually said in interview was that Mr Owens smoked "Probably about the same as me. About 15 a day" but that answer was very clearly in the context of a discussion about ready made cigarettes and she said, later in the interview, that he smoked a lot of tobacco, meaning hand rolled tobacco and that was clearly in addition to such ready made cigarettes as he smoked.
- The review relies in part upon the fact that Mr and Mrs Owens underestimated the length of time the cigarettes would last at their stated rate of consumption but we were told and indeed it is referred to in the interview that not all the cigarettes would be used for themselves and that, given the shortfall in the tobacco purchased for gifts compared with the list, some of the recipients of the gifts would have received cigarettes as well as tobacco.
- It is alleged that there was an inconsistency between Mr and Mrs Owens because she had mentioned that money was kept in a safe at home but he had not and she had said her wages were paid into a bank. We fail to see any inconsistency there Mr Owens simply did not mention the safe.
- The review officer alleges that neither appellant smoked during the interview. Mr and Mrs Owens said that there were no smoking signs in the place where they were interviewed and we regard the allegation as irrelevant and wrong.
- In conclusion therefore we have found that we believed Mr and Mrs Owens' evidence that the goods in question were for their own use, as defined, and therefore not for a commercial purpose and the alleged inconsistencies, such as they were, give us no reason to alter that positive belief based on their evidence.
- In overall summary of the case we therefore hold that we are entitled to make full findings of fact, we hold that the appellants Convention rights entitle them to challenge the correctness of the seizure and that they are not precluded by procedural issues such as abuse of process and the like from doing so in the circumstances of this case. We find that the goods were for their own use and that accordingly they were not liable to seizure or forfeiture.
- Section 16(4) of the Finance Act 1994 provides that before an appeal can be allowed the tribunal must be satisfied that the Commissioners' decision was unreasonable. Mr Clive urged us to conclude that that means that, unless the Commissioners decisions about the facts were ones that they could not have reasonably reached, we must take the facts as the commissioners found them to be and judge the reasonableness of their decision in light of those facts without substituting our own. We do hold the commissioners' conclusions of fact are unreasonable in light of the inadequacies of the analysis of the evidence in the review decision already referred to but, given the fact finding powers of the tribunal and the terms of section 16(4)(b) of that Act which appears to contemplate that the tribunal will direct a further review in the light of its findings, we do not agree that the question should be judged on the commissioners view of the facts even if that view was one they could reasonably have reached. It is also relevant that the tribunal, having heard evidence on oath or affirmation which has been tested by cross examination, will be in a better position to make a finding of fact than a review officer who simply sees notebooks and reports from the relevant officers.
- Accordingly we allow the appeal.
- Our powers are limited by section 16(4) of the Finance Act 1994 but in accordance with those powers we direct that the review decision under appeal shall cease to have effect and we direct that a further review is to be conducted by an officer not previously involved in the case. We direct that that review is to be conducted in light of our findings of fact in this Decision and in particular in light of the fact that we have found that the goods were for the appellants' own use.
- Such costs as the appellants have reasonably incurred in and arising from this appeal shall be paid by the respondents, such costs to be determined by a chairman sitting alone if not agreed.
CHAIRMAN
RELEASED: 17 March 2008
MAN/07/8020
