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22-8-2018 2:54 pm  #1


Seizure

Hi guys, help needed if possible. Me and my Mrs had our tobacco took off us on the 5th May and today came  the dreaded fines in the post!! I had 11.5kg on me 3 different brands,told them it was for me and the rest presents, my Mrs had 6kg of Amber on her. I never appealed because I’m a frequent traveller(18 times in 12 month) with different brands  my Mrs didn’t appeal because she suffers from anxiety and didn’t fancy a day in court.Also the warning of potential court costs put me off. She told them it was for her own use but they believed she was bringing it back for me to sell and seized it on the grounds she was “vague” I know it’s probably too late to appeal the seizure but is there anything that can be done to appeal the amount of the fines??
Many Thanks

 

22-8-2018 7:54 pm  #2


Re: Seizure

Not much you can do.

You can appeal the assessment but you need grounds to do that or HMRC will apply for a strike out at tribunal. 

I don't see any grounds you could appeal on. Turbulentupstart is our resident expert on tribunals. Maybe he'll comment if he looks in.


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23-8-2018 5:04 am  #3


Re: Seizure

Thanks for your reply, Thought that might be the case, but wondered if it was possible to appeal at least the “Wrongdoing” fine, given the fact we’ve done nothing wrong in our opinion.
Cheers

     Thread Starter
 

08-9-2018 2:25 pm  #4


Re: Seizure

It doesn't cost anything to appeal, but the process is rather complex. As eezyrider says above, you need to think carefully about your grounds of appeal. It is not good enough merely to argue the goods were for your own use, as this argument will almost certainly be rejected.

When preparing an appeal you need to be aware of the legal framework as it applies to seizure and forfeiture.

 The law. 

When deciding whether or not imported goods are held for commercial purpose, customs are required to conduct an impartial excise interview. If they conclude that the goods were not entirely for your own consumption or for gifts, they are entitled to seize all the goods (including any that were for own use). If you do not appeal to the magistrates court in time, the goods are deemed to have been lawfully seized. What this means in practice, is that you cannot usually argue the contrary in any subsequent proceedings arising from a request for restoration, an assessment to duty or a penalty. 

In view of the legal framework, some possible grounds of appeal are listed below:  

Assessment to Duty

1. A proper excise (“A to J”) interview was not conducted and the commercial status or (otherwise) of the goods was therefore not determined. 

2. That Article 37 of the EU Excise Directive precludes an assessment to duty in this case. This subject has been much discussed on this forum (see this thread). It appears, however, that Upper Tribunal has recently rejected this argument (seeRevenue and Customs v Jacobson)

 3. That some of the seized goods were for own use, and although liable to forfeiture (because they were “mixed packed or found” with the other goods) ,they were not liable to duty

Penalty

 1. Ground 3 above is also relevant to the amount of any penalty. Clearly it would not be appropriate to charge someone importing goods that were mostly for his own use the same penalty as someone importing goods entirely for a commercial purpose. 

2. It does not automatically follow from your failure to appeal the seizure that you are guilty of “wrongdoing”. (SeeLewis v Revenue & Customs [2015] paragraphs 22 and 23)

 In view of recent development in the Tax Tribunal (of which I hope to say more in the near future) , ground 3 under the assessment heading would appear to be the most promising. However, it won't do any harm to include the other grounds (if appropriate) and any others you may be able to think of.

Last edited by turbulentupstart (08-9-2018 2:28 pm)

 

08-9-2018 3:23 pm  #5


Re: Seizure

Thanks for the reply. I’ve asked them to look at it again and gave them various reasons. Like you say I don’t think I will get anywhere. Will post when I get a response but I’m presuming I will have to go to a tribunal?
Thanks.

     Thread Starter
 

08-9-2018 6:42 pm  #6


Re: Seizure

Yes the next step is an appeal to a tribunal. Be aware that you will have to pay the duty (but not the penalty)  before the tribunal will accept your appeal or you will need to make  a hardship application.

(Btw forgot link to Article 37 thread in my post above. It'shere)

Last edited by turbulentupstart (08-9-2018 6:43 pm)

 

09-9-2018 10:11 am  #7


Re: Seizure

Is it possible to get the duty back at tribunal or is it just the penalty I can appeal? Sorry but not sure of the way it works. Thanks for your time once again.

     Thread Starter
 

10-9-2018 8:13 pm  #8


Re: Seizure

You can appeal against both duty and penalty, but as stated above the duty has to be paid "up front" or a successful hardship application made. The same tribunal will hear both appeals. If it decides that the duty assessment should be cancelled or reduced, HMRC will be obliged to refund you.

 

11-9-2018 7:44 am  #9


Re: Seizure

Ok, thanks for all your help,
Much appreciated.

     Thread Starter
 

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