This appeal arises in the context of the regime which permits wholesale trading in alcoholic drinks and other dutiable goods which are held in, or moved between, excise warehouses without giving rise to an ‘excise duty point’ and thus attracting liability for excise duty.
Held: (i) The High Court has jurisdiction to grant an injunction maintaining registration pending appeal to the FTT, which has been revoked by HMRC, when a parallel challenge to that decision is made in judicial review proceedings.
(ii) The jurisdiction should not be exercised simply on the basis that the person concerned has a pending appeal with a realistic chance of success.
(iii) If the decision is challenged only on the basis that HMRC could not reasonably have come to it, the case falls within section 16 of the Finance Act 1994 and the court should not intervene.
(iv) If the challenge to the decision is on some other ground outside the statutory regime the court may entertain judicial review or grant interim relief.
(v) A definition of the additional element needed is elusive but would include ‘abuse of power’, ‘impropriety’ and ‘unfairness’ as envisaged in Harley Development Inc v Comr of Inland Revenue  1 WLR 727.
Underhill LJ said: ‘where the challenge to the decision is not simply that it is unreasonable but that it is unlawful on some other ground, then the case falls outside the statutory regime and there is nothing objectionable in the court entertaining a claim for judicial review or, where appropriate, granting interim relief in connection with that claim. A precise definition of that additional element may be elusive and is unnecessary for present purposes. The authorities cited in the Harley Development case refer to ‘abuse of power’, ‘impropriety’ and ‘unfairness’. [Counsel for HMRC] referred to cases where HMRC had behaved ‘capriciously’ or ‘outrageously’ or in bad faith. Those terms sufficiently indicate the territory that we are in, but I would sound a note of caution about ‘capricious’ and ‘unfair’. A decision is sometimes referred to rhetorically as ‘capricious’ where all that is meant is that it is one which could not reasonably have been reached; but in this context that is not enough, since a challenge on that basis falls within the statutory regime. As for ‘unfair’, I am not convinced that any allegation of procedural unfairness, however closely connected with the substantive unreasonableness alleged, will always be sufficient to justify the intervention of the court: [counsel for HMRC] submitted that cases of unfairness would fall within the statutory regime to the extent that the unfairness impugned the reasonableness of the decision. As I have noted above, the types of unfairness contemplated in [R v Inland Revenue Comrs, Ex p Preston  AC 835] -which is the source of the use of the term in the Harley Development case – were of a fairly fundamental character. But since procedural unfairness is not relied on in this case I need not consider the point further.’
Lord Justice Underhill
 EWCA Civ 1653,  WLR(D) 557,  1 WLR 4043
England and Wales
Applied – ABC Ltd and Another v HM Revenue and Customs CA 7-Jul-2017
Temporary approval pending appeal was preferred
The company challenged refusal of fit and proper approval for registration as wholesaler of duty paid alcohol.
Held: The appeals were allowed in part. HMRC, having once concluded that the applicant was not fit and proper was not free to . .
Cited – OWD Ltd (T/A Birmingham Cash and Carry) and Another v Revenue and Customs SC 19-Jun-2019
The wholesalers sought approval from the respondent for the wholesale supply of duty-paid alcohol. Approval was refused, but the parties sought a means of allowing a temporary approval pending determination by the FTT. The two questions considered . .
Lists of cited by and citing cases may be incomplete.
Customs and Excise
Updated: 08 April 2022; Ref: scu.540335