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12-2-2016 9:18 pm  #1

HMRC can't afford to lose this one !

Her Majesty's Revenue and Customs -v- European Brand Trading Limited.
Tuesday, 9th February, 2016 

It is impossible to overestimate the significance of the decision of the Court of Appeal in Jones and Jones, where at a stroke, Customs favourite judge Lord Justice Mummery swept aside the reservations expressed by Buxton LJ and Carnwath LJ in Gascoyne V Customs and Excise. In Jones, the Court of Appeal held that if goods were seized on the grounds that they were not for own use and the importer did not appeal it was deemed conclusively that they were held for commercial purpose. This gave HMRC and BF every incentive to declare open season on cross channel shoppers and provided the justification for the almost automatic issuing of duty demands and penalties and “coffee machine” restoration decisions.

 In the present appeal, goods were seized from European Brand Trading (EBT) on the grounds that duty had not been paid on them. EBT appealed, but because of HMRC intransigence were unable to establish that the duty had in fact been paid. In the circumstances, they abandoned their appeal, but continued to seek restoration of the goods. The Upper tribunal ruled that because of the decision in Jones once the goods had been condemned, any attempt by EBT to produce evidence of duty payment were futile. Even if they could produce conclusive evidence that duty had been paid, HMRC would be bound to ignore it. http://www.bailii.org/uk/cases/UKUT/TCC/2014/226.pdf. A summary can be found at http://2harecourt.newsweaver.com/Whitecollarnewsletter/zhlhku1xu5l?a=1&p=48485046&t=22607985

 In the present appeal EBT argue that the discretion of customs in matters of restoration should not be completely fettered in this way. Were they to succeed, it could have considerable significance for cross border shoppers in that it might be possible to raise evidence of “own use” in a restoration appeal or appeal against assessment/penalty even when goods had been forfeited. I'd like to think that the justices of Appeal will look beyond their gold-plated pensions, strike a blow for the noble cause of justice and consign the pernicious judgement of Mumbo-Jumbo LJ to the dustbin of history and thus bring the whole rotten edifice established by HMRC/UKBF crashing down around their ears.

 I'm not optimistic however. After all look what happened in Eastenders, when the Supreme Court dredged up ancient case law going back to 1610 in order to rescue Customs. 


12-2-2016 10:38 pm  #2

Re: HMRC can't afford to lose this one !

The problem seems to be that these rulings last a very short period before HMRC change the rules to suit themselves.

Please ensure you do not divulge any information which could identify you as Border Force will use your posts here as evidence against you in court.


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