FTTTx EXCISE DUTY – restoration – whether decision not to restore reasonable having regard in particular to evidence of travel patterns of which was not before the officer making the decision.
Hellier TJ explained the limited role of the tribunal in such applications: We must explain at the outset that the role of this tribunal in an appeal of this nature is unusual and is limited. There are two aspects to this.
First, in relation to the question of whether or not a car should be returned, we are not given authority by Parliament to make a decision that it should or should not be restored. The decision as to whether or not to restore the car is left in the hands of [the UKBF]: only they have the power or duty to restore it. Instead we are required to consider whether any decision they have made is reasonable. If it is not reasonable we can set the decision aside and require them to remake it; we can give some instructions in relation to the remaking of the decision, but we cannot take the decision ourselves. If we set aside a decision and [UKBF] make a new decision, then the taxpayer may appeal against that decision and the same process follows.
It is important to remember that a conclusion that a decision is not unreasonable is not the same as a conclusion that it is correct. There can be circumstances where different people could reasonably reach different conclusions. The mere fact that we might have reached a different conclusion is not enough for us to declare that a conclusion reached by [UKBF] should be set aside.
The second limitation in our role follows from the fact that Parliament has decreed that it is for the magistrates court or the High Court to decide upon whether or not goods are legally forfeit. The Customs and Excise Management Act 1979 (‘CEMA’) sets out the required procedure: if the subject disputes the legality of the seizure he can require [UKBF] to bring proceedings (unhappily they are called condemnation proceedings) in the magistrates court to determine the legality of the seizure. If the magistrates court decides that the goods are properly forfeit then the tribunal cannot overturn that decision or take a different view. Further we must proceed on the basis that any finding of fact which was necessary for the magistrates court to have come to this decision is to be taken as having been determined by the magistrates and, before us, is therefore to be treated as proved.
If the subject does not require condemnation proceedings to be taken in the magistrates court, he can effectively concedes the legality of the seizure. That is because Schedule 3 CEMA provides: ‘If on the expiration of the [one month period for giving notice that something is asserted not to be liable to forfeiture] no such notice has been given to the commissioners, or if, in the case of any such notice given, any requirement of paragraph 4 above is not complied with, the thing in question shall be deemed to have been duly condemned as forfeit.’
9. The effect of this deeming is that any facts which would have been necessary to the conclusion that the goods are forfeit must also be assumed to have been proved. It would be an abuse of process to permit such conclusions to be reopened in this (see para [71(7)] HMRC v Jones [2011] EWCA Civ 824: ‘Deeming something to be the case carries with it any fact that forms part of that conclusion’) . .
There is one other oddity about this procedure. We are required to determine whether or not the [UKBF’s] decision was ‘unreasonable’; normally such an exercise is performed by looking at the evidence before the decision maker and considering whether he took into account all relevant matters, included none that were irrelevant, made no mistake of law, and came to a decision to which a reasonable tribunal could have come. But we are a fact finding tribunal, and in Gora and Others v Customs and Excise Commissioners [2003] EWCA Civ 525 Pill LJ approved an approach under which the tribunal should decide the primary facts and then decide whether, in the light of the tribunal’s findings, the decision on restoration was in that sense reasonable. Thus we may find that a decision is ‘unreasonable’ even if the officer had been, by reference to what was before him, perfectly reasonable in all senses.’
Judges:
Hellier TJ
Citations:
[2013] UKFTT 134 (TC)
Links:
Cited by:
Cited – Balaz v Director of Border Revenue FTTTx 5-Nov-2013
FTTTx EXCISE DUTY – Appeal against decision not to restore vehicle seized on entry into the UK – Whether the decision could reasonably have been reached – Yes – Whether exceptional hardship – No – Appeal . .
Lists of cited by and citing cases may be incomplete.
Customs and Excise
Updated: 14 November 2022; Ref: scu.472352