The Commissioners had found what they considered to be an excess of dutiable goods brought into the country by the tax payer, and had forfeited the car. The court considered the effect of the Gora case.
Held: The difficult statements in Gora were obiter. In a case where the deeming provisions under paragraph 5 are applied, the tribunal can reopen those issues: though the tribunal will always have very well in mind, considerations of, or similar to, abuse of process in considering whether such issues should in fact be ventilated before it. The notice was to be read in its context to see whether it raised the issue that the goods were solely for the importer’s personal use. The letter to the customs was a notice of claim. There is a ‘very unsatisfactory mismatch of the two statutory procedures derived from different historical sources. That is something which only the legislature can correct. ‘ It was open to the tribunal to consider issues of proportionality. Here however the appeal was dismissed.
While an importer was not completely shut out from raising own use before the Tribunal, the Tribunal would have to be very conscious of issues of abuse of process when deciding that this could be done.
Buxton LJ drew attention to the impact of the Convention on the tribunal’s jurisdiction. In particular, he said that the potential impact of Article 1 of the First Protocol protecting rights of property is that the deeming provisions of the 1979 Act may not adequately enable the owner to assert his Convention rights. The deeming consequences may not therefore be paramount in every case. They may not necessarily prevent any further consideration by the FTT of the issues of fact relating to the purpose of the importation and the legality of the seizure. The FTT may allow those issues to be re-opened on hearing a restoration appeal, but must also bear in mind general considerations of, or similar to, abuse of process.
Judges:
Brooke LJ VP, Buxton LJ, Carbwath LJ
Citations:
[2004] EWCA Civ 1162, [2005] 2 WLR 222, [2005] Ch 215
Links:
Statutes:
Excise Duties (Personal Reliefs) Order 1992, Customs and Excise Management Act 1979 3 139 1141, European Convention on Human Rights 1
Jurisdiction:
England and Wales
Citing:
Appeal from – Gascoyne v Commissioners of Customs and Excise ChD 21-Feb-2003
The applicant challenged the respondent’s policy on restoration of vehicles confiscated on being found to be used for commercial smuggling. Vehicles would only be returned exceptionally. The applicant had written to the respondents who considered . .
Obiter – Gora and others v Commissioners of Customs and Excise and others CA 11-Apr-2003
The appellants challenged decisions of the VAT and Duties Tribunal after seizure of their goods, and in particular whether the cases had been criminal or civil cases and following Roth, whether the respondent’s policy had been lawful and . .
Cited – Lindsay v Commissioners of Customs and Excise CA 20-Feb-2002
The applicant was stopped at Customs carrying cigarettes over the quantity set for personal use. His car was seized, and Customs refused to return it. The cigarettes were for his own use and for sale to family members. He claimed the seizure was an . .
Cited – Commissioners of Customs and Excise v Newbury Admn 3-Mar-2003
The commissioner appealed a finding that a car and other goods they had forfeited should be returned. The owner said that matters had been imported for personal use under the directive.
Held: The directive had direct effect and precedence over . .
Cited by:
Appealed to – Gascoyne v Commissioners of Customs and Excise ChD 21-Feb-2003
The applicant challenged the respondent’s policy on restoration of vehicles confiscated on being found to be used for commercial smuggling. Vehicles would only be returned exceptionally. The applicant had written to the respondents who considered . .
Cited – Davidson v Revenue and Customs Excs 25-Jul-2008
VDT EXCISE – seizure of vehicle and goods – whether seizure challenged – restoration refused – whether appeal against non-restoration of vehicle – whether decision not to restore goods proportionate – whether . .
Cited – Revenue and Customs v Jones and Another CA 18-Jul-2011
HMRC appealed against an order for the return to the owner of goods seized under the 1979 Act. The respondents imported tobacco and alcohol which was seized. They said it had been for personal use. HMRC now said that the Tribunal’s jurisdiction to . .
Explained – HM Revenue and Customs v Dawkin ChD 2008
David Richards J reviewed the authorities and stated the test which has been applied in the tribunals and courts since Gascoyne: ‘The issue is whether the Tribunal misdirected itself in its consideration of the question of abuse of process. The . .
Explained – Customs and Excise v Smith ChD 9-Nov-2005
Lewison J cited the case of Gascoyne saying that it was clear that ‘in the run-of-the-mill case where there has been a failure to give a paragraph 3 notice invoking the condemnation proceedings, the deeming provision will indeed operate against the . .
Cited – Martin v Director of Border Revenue FTTTx 14-Dec-2010
FTTTx EXCISE DUTY – restoration of car – 15 kilos of hand-rolling tobacco, 1,200 cigarettes and 2,050 cigars between three people – whether reasonable not to restore – yes – appeal dismissed . .
Lists of cited by and citing cases may be incomplete.
Customs and Excise, Human Rights
Updated: 11 June 2022; Ref: scu.200534