Traderco Ltd v Revenue & Customs [2010] UKFTT 632 (TC)

FTT-Tax
Traderco Ltd v Revenue & Customs
[2010] UKFTT 632 (TC) · 2010-12-08
[1]On 28 October 2008, Traderco Limited (“the Appellant”) appealed against 10 notices of assessment for the periods 12/04, 03/05, 06/05, 09/05, 12/05, 03/06, 06/06, 09/06, 12/06, and 03/07 respectively. Assessments were raised for periods 03/04, 06/04 and 09/04, but they were withdrawn when the Respondent Commissioners (“HMRC”) accepted that they had been made out of time. At a Directions hearing on 16 July 2009 the Tribunal directed that the several appeals be consolidated under reference LON/2008/2384. Subsequently, the appeal number TC/2009/13725 was allotted to the consolidated appeal.[2]The assessments were raised because HMRC considered that there was insufficient evidence of export of goods supplied by the Appellant and liability to VAT at the standard rate was assessed in respect of those supplies on the basis that they did not qualify to be zero-rated. The relevant zero-rating provision in domestic law is section 30(6) VAT Act 1994 (“VATA”), which relevantly provides as follows:
“A supply of goods is zero-rated by virtue of this subsection if the Commissioners are satisfied that the person supplying the goods– (a) has exported them to a place outside the member States; or (b) ... and in either case if such other conditions, if any, as may be specified in regulations or the Commissioners may impose are fulfilled.”
[3]Section 30(6) VATA and the relevant regulations were enacted in implementation of article 15 of the Sixth VAT Directive (77/388/EEC) which provides for a mandatory exemption for supplies of goods exported from the Community ‘under conditions which [the Member States] shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse’.[4]Regulation 129 of the VAT Regulations 1995 is relevant. It provides as follows:
“Where the Commissioners are satisfied that– (a) goods intended for export to a place outside the member States have been supplied otherwise than to a taxable person, to– (i) a person not resident in the United Kingdom , (ii) a trader who has no business establishment in the United Kingdom from which taxable supplies are made, or (iii) an overseas authority, and (b) the goods were exported to a place outside the member States, the supply, subject to such conditions as they may impose, shall be zero-rated.”
[5]Conditions have been imposed by Notice 703 VAT (Export of goods from the United Kingdom), some parts of which are stated to have ‘the force of law’. Relevant passages of Notice 703 which are stated to have ‘the force of law’ include:
“ Paragraph 3.3 : Conditions for zero-rating direct exports A supply of goods sent to a destination outside the EC is liable to the zero rate as a direct export where you: · ensure that the goods are exported from the EC within the specified time limits (see paragraph 3.5) · obtain official or commercial evidence of export as appropriate (see paragraphs 6.2 and 6.3) within the specified time limits · keep supplementary evidence of the export transaction (see paragraph 6.4), and · comply with the law and the conditions of this notice.” and “ Paragraph 3.4 : Conditions for zero-rating indirect exports A supply of goods to an overseas customer (see paragraph 2.4) sent to a destination outside the EC is liable to the zero rate as an indirect export where: your overseas customer: · exports the goods from the EC within the specified time limits (see paragraph 3.5), and · obtains and gives you valid official or commercial evidence of export as appropriate (see paragraphs 6.2 and 6.3) within the specified time limits, and you: · keep supplementary evidence of export transactions (see paragraph 6.4), and · comply with the law and conditions of this notice, and the goods are not used between the time of leaving your premises and export, except where specifically authorised elsewhere in this notice or any other VAT notice.”
[6]As indicated above, paragraph 3.5 contains text having ‘the force of law’ in relation to time limits for exporting goods and time limits for obtaining evidence. These are usually 3 months but in some cases are 6 months. Paragraph 6 deals with ‘Proof of Export’. Sub-paragraphs 6.2, 6.3 and 6.4, which do not have ‘the force of law’, deal (by way of explanation) respectively with official evidence, commercial transport evidence and ‘what supplementary evidence is available?’.[7]Paragraph 6.5, which contains text which does have ‘the force of law’, deals with what must be shown on export evidence. The text having ‘the force of law’ is as follows:
“The evidence you obtain as proof of export, whether official or commercial, or supporting must clearly identify: · the supplier · the consignor (where different from the supplier) · the customer · the goods · an accurate value · the export destination and · the mode of transport and route of export movement.”
[8]The other text in sub-paragraph 6.5 states that vague descriptions of goods, quantities or values are not acceptable and contains the warning (in bold type) that if the evidence is found to be unsatisfactory “ you as the supplier will become liable for the VAT due ”.[9]Paragraph 7 contains information not having ‘the force of law’ about proof of export for zero-rating in certain specific circumstances. One subparagraph, 7.4, was particularly brought to our attention. It deals with groupage or consolidation transactions and states as follows:
“If you use a freight forwarder, consignments (often coming from several consignors) may be aggregated into one load, known as groupage or consolidation cargo. The freight forwarder must keep copies of the original bill of lading, sea-waybill or air-waybill, and all consignments must be shown on the container or vehicle manifest. You will be issued with a certificate of shipment by the freight forwarder, often supported by an authenticated photocopy of the original bill of lading, sea-waybill or a house air-waybill. Where such consignments are being exported, the forwarder is usually shown as the consignor in the shipping documents.”
[10]Subparagraph 7.4 goes on to explain about certificates of shipment, stating, among other things, that ‘the certificate of shipment must be an original and authenticated by an official of the issuing company unless it is computer produced, on an once-only basis, as a by-product of the issuing company’s accounting system’. The subparagraph also explains what information is usually contained in a certificate of shipment. Interlocutory matters[11]The appeals having been made on 28 October 2008, HMRC eventually served its Statement of Case at a Directions hearing on 16 July 2009. The Appellant had opposed the necessary grant of an extension of time to serve the Statement of Case but because the Tribunal at that hearing took the view that there appeared to be a genuine triable issue between the parties that extension of time was granted.[12]At that Directions hearing on 16 July 2009 the Tribunal directed HMRC as follows:
“(3)(b) [HMRC] will disclose to the Appellant and lodge with the Tribunal within 14 days after the release of these Directions [27 July 2009] copies of any notes of a visit by HMRC to Support Freight in July 2007 in relation to shipments in issue in the appeal or a sworn statement to the effect that no such visit took place. (3)(c) [HMRC] will within 28 days of receipt of service of the Appellant’s Supplementary Witness Statement serve on the Appellant and lodge with the Tribunal any Witness statement(s) in response, together with exhibits of any documents to be relied on in the appeal.”
[13]In response to Direction (3)(b), HMRC filed a Witness Statement (the first such) sworn by Andrew Stewart, the Officer of HMRC who raised the assessments in issue in the appeal. He stated as follows:
“Based upon the examination of records available to me I am unable to state whether or not any officer of HMRC has visited the shipping company (Support Freight). I am aware that an attempt was made by an officer of HMRC to visit the shipping company at [a particular address], as shown on the original certificates of shipping. However, the officer informed me that this address was vacant. Further documentation would suggest that a visit may have taken place at the new correct address for the shipping company, but I have no details of this, and it did not impact on my decision in this case.”
[14]HMRC did not serve their Witness Statement in response to the Appellant’s Supplementary Witness Statement within the time limit directed and applied to the Tribunal for an extension of time, explaining that the reason for their failure to comply was that they had been obliged to extend their enquiries into the matters in dispute in the appeal. The Appellant unsuccessfully opposed the grant of an extension of time. Eventually the Witness Statement was served on the Appellant (with some difficulty and occasioning further delay).[15]A date for the hearing of the appeal was fixed for 20 May 2010 but that fixture was cancelled by the Tribunal’s administration without reference either to a Judge or to the Appellant. The Tribunal’s administration apologised to the Appellant for this. The appeal was eventually set down for hearing on 5 and 6 October 2010.[16]On 29 September 2010, one week before the date fixed for the hearing, HMRC applied to have the appeal struck out or alternatively to have the appeal stood over until the conclusion of all ongoing criminal proceedings in which Mr. Acting Representative is a defendant.[17]The explanation given for the strike-out application was that enquiries undertaken by HMRC indicated that Mr. Acting Representative had resigned his directorship of the Appellant in early 2009 but had continued to correspond in the name of the Appellant and on occasion to style himself as its director.[18]The grounds given for the stand-over application was that Mr. Acting Representative had been charged with 6 offences of fraud relating to the submission of false invoices in support of claims for deduction of input tax. It was stated that a company controlled by Mr. Acting Representative (not the Appellant) had claimed to have exported the goods detailed on those invoices using a freight forwarder called Support Freight in order to place itself in the position of being a VAT repayment trader.[19]HMRC submitted that the interests of justice required that the intended criminal proceedings be accorded priority over the appeal(a) to avoid the risk of there being any finding of fact which might prejudice either party in the criminal proceedings;(b) because if it were to be proved to the criminal standard that Mr. Acting Representative had submitted false documentation, that would clearly be relevant to the appeal; and(c) that it would impose an unfair burden on Mr. Acting Representative were he to be required to prepare for the appeal ‘in circumstances where he is also required to participate in criminal proceedings’.[20]The Tribunal declined to grant this application without hearing from the Appellant and directed that it should be addressed as a preliminary issue at the hearing which had been fixed for 5 October 2010.[21]At the hearing Mr. Singh, on behalf of HMRC, told the Tribunal that he was no longer proceeding with the application to strike out the appeal. He was, however, advancing as his principal submission that the appeal should not be heard on 5 and 6 October, but should be stood over pending the outcome of criminal proceedings against Mr. Acting Representative. He submitted that there was a real risk that the Tribunal’s findings on disposing of the appeal would prejudice one of the parties in the criminal proceedings.[22]He submitted that there were further difficulties in proceeding with the appeal on 5 and 6 October 2010. There had been non-compliance by the Appellant with directions made by the Tribunal and there had been no authorisation from the Appellant granting Mr. Acting Representative the right to conduct the appeal on the Appellant’s behalf. Moreover, Mr. Singh added, the Appellant may be wound up at a hearing on 3 November 2010.[23]Mr. Acting Representative told the Tribunal that he was the ‘main shareholder’ in the Appellant. The Tribunal had regard to its general powers in rule 5(1) and 5(2) and its specific power in rule 11(5) of the Tribunal procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (“the Rules”) pursuant to which it can give a person permission to act as a representative or otherwise assist in presenting a party’s case at a hearing. The Tribunal resolved the difficulty (apparent or otherwise) of Mr. Acting Representative’s authorisation to represent the Appellant at the hearing (in circumstances where the Appellant had raised no objection to Mr. Acting Representative’s appearance) by giving permission for Mr. Acting Representative to assist in presenting the Appellant’s case at the hearing.[24]The Tribunal warned Mr. Acting Representative that it was possible that facts found by the Tribunal in the appeal (should the hearing proceed) might be unhelpful to him in any criminal proceedings in which he was the defendant. Mr. Acting Representative told the Tribunal that he understood this but that he nevertheless wished the hearing to proceed.[25]The burden was on HMRC to show that it would be right to direct a stand-over of the appeal hearing.[26]The Tribunal considered the decision of the Court of Appeal in Mote v Secretary of State for Work and Pensions and Another [2007] EWCA Civ 1324 , the decision of the Privy Council in Panton and Others v Financial Institutions Services Limited [2003] UKPC 86 , and the decision of the Court of Appeal in VvC [2001] EWCA Civ 1509 . It bore in mind that the Appellant apparently wished to proceed with the hearing of the appeal and that the intended criminal proceedings are against Mr. Acting Representative, a different party. It also bore in mind that Mr. Acting Representative, who could in principle be at risk from injustice occasioned by the prior determination of civil proceedings, is quite prepared to take the risk.[27]The Tribunal accepted that there may be a factual overlap between the subject matter of the appeal and the subject matter of the intended criminal proceedings, centred principally on the issue of Mr. Acting Representative’s honesty in relation to VAT matters. Nevertheless it seemed to the Tribunal that any finding by us in relation to the Appellant’s entitlement to zero-rate the supplies in issue would be likely to be inadmissible in any criminal proceedings (see Mote at [34] and VvC at [43]).[28]We considered in all the circumstances that we should proceed to hear the appeal. But because we were aware that there may be some slight risk that prejudice might be caused to the intended criminal proceedings, we directed that the hearing of the appeal would be held in private pursuant to our power in rule 32(2)(e) of the Rules so to direct if we consider that restricting access to the hearing is justified because not to do so would prejudice the interests of justice. We also decided to publish this Decision in anonymised form pursuant to rule 32(6) of the Rules. The evidence[29]The Tribunal was provided with two bundles of documents and Witness Statements from Mr. Acting Representative and Officer Andrew Stewart. We also heard oral evidence from Mr. Acting Representative, Officer Stewart and Mr. Freight Forwarder of Support Freight, who was called on behalf of the Appellant.[30]We accept the evidence and find facts accordingly except where we indicate to the contrary in this Decision.[31]Officer Stewart visited the Appellant’s premises on 26 September 2006 and spoke to Mr. Acting Representative. He was told that the Appellant’s business consisted of buying new and used computer components in the UK for export to customers in Nigeria. He worked on verification of the Appellant’s VAT account but was unable to finish the work during the visit. He visited again on 2 November 2006. He was informed that orders from customers were sourced by the Appellant (a price having been agreed) and the products were sent to Support Freight for storage until shipment. Officer Stewart became suspicious as to the authenticity of the invoices and export documentation produced by the Appellant and took away with him for further scrutiny business records described on the receipt issued at that time as follows:
“One green ringbind folder said to contain HSBC bank statements from 16/01/03 to 16/08/06 ; Sage reconciliations and bank correspondence. One green ringbind folder said to contain purchase invoices reference 207 to 290. One black ringbind folder said to contain purchase invoices reference 291 to 316. One black and red ringbind folder said to contain purchase invoices reference 001 to 204 and sales invoices reference 1 to 72, some with freight certificate attached. One black ringbind folder said to contain copy VAT return and Sage VAT report for periods 06/02 to 06/06.”
[32]Officer Stewart’s evidence was that after 29 November 2006 he was made aware that Mr. Chris Kent and Mr. Andy Sampson (HMRC officers) were involved in further investigations into the transactions of the Appellant as well as other companies associated with Mr. Acting Representative but that their investigations were not to be pursued at that time. He accepted that Officer Chris Kent may have visited Support Freight as part of that investigation, but he did not know what transpired at such a visit and it played no part in his own investigation.[33]However, Mr. Acting Representative insisted that in July 2007 he went with Officer Chris Kent to the premises of Support Freight. He said that while there, Officer Chris Kent picked out some of the supplies which the Appellant had made and asked for documents to show that the sample shipments had taken place. Mr. Acting Representative said that the original documents (we assume the original certificates of shipment, but, according to Mr. Acting Representative, also SAD documents – i.e. single administrative documents) had been sent off to Officer Chris Kent and that, when he was at the premises of Support Freight he (Officer Chris Kent) authenticated the shipments. It will be noted that Mr. Acting Representative made this point at the Directions hearing on 16 July 2009 and that Officer Stewart’s evidence (see paragraph 13 above) did not amount to a denial that a visit had been made by HMRC to Support Freight in July 2007 in relation to shipments in issue in the appeal.[34]On 15 February 2007 Officer Stewart wrote to Mr. Acting Representative requesting that the Appellant provide him with proof of export documentation and supplementary evidence to show that the transactions entered into in VAT periods 03/04 to 12/06 had taken place. He explained that he considered that the certificates of shipment which he had retained did not include all of the information required to fulfil HMRC’s criteria for proof of export and zero-rating. He referred Mr. Acting Representative to section 6 of Notice 703 for details of the evidence required to prove export and informed him that failure to have obtained sufficient evidence within the stipulated time limits would result in the Appellant, as supplier, being liable to VAT on the supplies. He also requested further documentation relating to the VAT periods 09/06 to 12/06.[35]Mr. Acting Representative replied on 1 March 2007 enclosing further information and stating that the certificates of shipment supplied to the Appellant by Support Freight showed all the required information He offered to request sample air-waybills from the shippers. Officer Stewart replied on 7 March 2007 that the certificates of shipment did not contain all the required information and asked to be supplied with suitable official or commercial transport evidence of export and supplementary evidence for all sales made in the VAT periods 03/06 and 06/06.[36]This stand-off situation continued and on 18 April 2007 Officer Stewart issued an assessment to the Appellant for the VAT period 03/04.[37]On 5 June 2007, Officer Stewart received versions of certificates of shipment containing additional information corresponding to sales invoice numbers 27 to 46, 53, 55, 56 and 59 to 80. These documents were unsigned and Officer Stewart thought they did not show the correct address of the shipping agent used.[38]Officer Stewart wrote to Mr. Acting Representative requiring to see the original copy certificate of shipment for each transaction. He also repeated his request for supplementary evidence of export. He raised an assessment on the Appellant for the VAT period 06/04.[39]On 18 July 2007, Mr. Acting Representative replied to Officer Stewart (the letter being received by him on 1 August 2007) enclosing further versions of certificates of shipment, this time signed. These documents were formatted slightly differently to the documents provided on 5 June 2007 and contained further information which appeared to Officer Stewart to have been provided in response to his requests for further information. He believed that the documents had been produced after the event.[40]On 23 August 2007, Officer Stewart wrote to Mr. Acting Representative. He stated that he was not satisfied that the certificates of shipment provided were sufficient to prove export ‘in their own right’. He said that he therefore requested for each transaction the provision of further evidence in the form of copies of(1) the single administrative document (SAD) endorsed by Customs at the point of exit from the EC;(2) an authenticated air-waybill; and(3) transport documents fully completed and signed by the receiving customer.[41]Mr. Acting Representative replied stating that this latest information request was ‘over and above the requirements stated in Notice 703’. He pointed out that there is only one SAD document for each shipment and air-waybills cannot list all the goods shipped.[42]Officer Stewart replied on 17 October 2007 stating that box 31 of the SAD requires entry of the number of packages and other details including description of goods which must be sufficient for Customs to identify them and, where the space is not sufficient, an additional manifest should be attached. He stated that Mr. Acting Representative should therefore be in receipt of or able to obtain a copy of the stamped SAD detailing each consignment of goods made. He also stated that a house air-waybill is produced for each consignment on an aircraft and details the manifest of each consignment and its weight and volume. He stated that Mr. Acting Representative should be able to obtain a copy of the house air-waybill showing the Appellant’s consignment and detailing its contents and he noted that the certificates of shipment already provided had reference to specific air-waybills on them. He notified Mr. Acting Representative that he was raising further assessments on the Appellant in respect of VAT periods 09/04 to 12/06 respectively (actually the periods 09/06 and 12/06 were not assessed but dealt with by an adjustment to the actual VAT return).[43]Mr. Acting Representative replied on 1 November 2007 stating his position that all necessary documentary evidence of export had already been provided. He disputed the assessments and requested an independent review.[44]Officer Stewart wrote again on 5 December 2007 explaining that the assessments had been raised because the officer was not satisfied that the certificates of shipment provided were sufficient to prove export in their own right and that none of the further evidence sought had been provided.[45]The next material development was on 21 January 2008, when Mr. Acting Representative sent copies of air-waybills for periods 03/06, 06/06 and 03/07 and certain copy SAD documents. Officer Stewart’s evidence was that he could not recall Mr. Acting Representative saying that he had already provided copies of SAD documents to Officer Chris Kent in 2007[46]An internal departmental review took place as a result of which the assessments for the VAT periods 03/04, 06/04 and 09/04 were withdrawn, but the other assessments were upheld.[47]On 24 April 2008 (received on 2 May 2008) Mr. Acting Representative sent to Officer Stewart “amended and re-signed” certificates of shipment, with supporting air-waybills, for each shipment. Officer Stewart acknowledged that these documents showed the information which would normally have been sufficient as proof of export, but the fact that they were provided as amended documents reinforced his conclusion that sufficient proof of export was not retained within 3 months of the original date of export as he had doubts about the authenticity of the amended documents provided. Additionally, the supporting air-waybills did not identify the items exported and in some cases referred to them simply as ‘urgent courier material – gift items’.[48]On 15 October 2009, Officer Stewart contacted Airco, the airline stated by the Appellant as having been used for all the exports in issue. He requested them to verify a random sample of 10 air-waybills. Airco confirmed to Officer Stewart that they believed the air-waybills were all genuine and that they would send copies.[49]Airco sent to Officer Stewart on 2 November 2009 copies of all 10 air-waybills and copies of the manifest for three of these, and the pre-manifest for a further two.[50]On 11 February 2010, Officer Stewart asked for an officer of HMRC to be allocated to carry out an urgent review of the records for the freight forwarders Support Freight and to verify that the certificates of shipment corresponding to the 10 air-waybills be authenticated. Although an attempt was made to do this, the visiting officer, Miss Catherine Ahorituwere was unable to authenticate these air-waybills because of a confusion over a multiplicity of VAT registrations for Support Freight and similarly named connected companies.[51]On 4 March 2010, Officer Stewart contacted Airco asking them to provide him with the manifest for the other 7 of the 10 air-waybills for which verification had been requested but for which no manifest had yet been provided.[52]On 31 March 2010, Airco replied, providing copies of those 7 manifests.[53]On 27 July 2010 Mr. Acting Representative wrote to Officer Stewart noting his evidence that Airco had confirmed to him that they believed the sample of 10 air-waybills were genuine. He commented on the statement in the manifests for three of the air-waybills that the goods shipped were described as “Gift Items” or “Toys” – a fact that had increased Officer Stewart’s suspicion that they did not relate to exports by the Appellant of electronic items or computer parts or accessories. He explained that the goods supplied by the Appellant to its customers do not form the bulk of what the customer ships, nor does it form the total shipment for Support Freight.[54]The arrangement in most if not all cases is that the goods supplied by the Appellant are sent by the Appellant to be held by Support Freight to the overseas customer’s order, where they are joined, before shipment, by other goods which the customer in question wishes to export and which form part of the same load, which is, in turn, part of a larger shipment actually made by an unconnected company which arranges shipment with the shipper (Airco). It is that unconnected company which specifies the description of goods for the manifests as, for example “Gift Items” or “Urgent Courier Material”.[55]In these circumstances Mr. Acting Representative contended in his letter to Officer Stewart of 27 July 2010 that the Appellant has no control of the cargo description chosen by the shipper. He relied on the certificates of shipment and photocopies of the related air-waybills as proof of export. He enclosed copies of all the certificates of shipment and air-waybills “checked, stamped and resigned by Support Freight, making them authenticated copies as required”.[56]Mr. Singh, for HMRC, contended that there are numerous discrepancies in the documents which Mr. Acting Representative has submitted at various dates, and no satisfactory explanation for these discrepancies has been provided by him. He said that for alleged identical supplies of goods, the documents show discrepancies in values, weight, place of loading, the description of goods, the reference number, the recipient of the goods, the address of the customer, and the date of export. Further, the evidence (in particular the documents supplied on 27 July 2010, which bear Support Freight’s checking stamp with that date, was obtained outside the time limits (generally of 3 months) having ‘the force of law’ pursuant to paragraph 3.5 of Notice 703.[57]Mr. Singh took the Tribunal to the certificates of shipment produced for invoices 43, 53 and 63 which he said were illustrative examples. Invoice 43[58]The version of invoice 43 taken away by Officer Stewart on 2 November 2006 corresponds to the Appellant’s order number ZO467. The order and the invoice show the customer as ‘Chike’ without an address, the date is shown as 20 February 2006, the goods sold are 3 Acer Aspire 1694 Notebooks, 3 HP L1706 17”TFT Flat Screens and 3 Belkin Mini Wireless Optical Mouses at a total price of £6,159 with no VAT added. The accompanying certificate of shipment taken away by Officer Stewart on 2 November 2006 showed the customer name as ‘Chike Mr Kitchen Place’, the airport of loading as ‘LHR’ (London Heathrow), the destination as ‘Lagos’ and the relative airway-bill number as 757-50128330.[59]The version of the certificate of shipment for invoice 43 received by Officer Stewart on 5 June 2007 showed the date, the goods purchased and their price as the same as in the earlier version. The ‘Loading Bay’ was shown, again, as London Heathrow. Details were given of the airline (Airco), the supplier, the receiving agent in Nigeria, the consignor and customer (‘Mr Chike’ with an address in Abuja). The air-waybill number was different, this time it was 757-50128676.[60]The version of the certificate sent on 18 July 2007 and received by Officer Stewart on 1 August 2007 was in all material respects the same as the version received by Officer Stewart on 5 June 2007, but this time it was signed by an authorised signatory of Support Freight.[61]Mr. Acting Representative’s letter dated 21 January 2008 enclosing copies of air-waybills, states of invoice 43 – ‘air-waybill No. 757-50126676 not found’. This is a different air-waybill number from those given previously.[62]The version of the certificate sent by Mr. Acting Representative to Officer Stewart on 24 April 2008 and received on 2 May 2008 is different from the versions sent earlier in that it bears a different authorised signatory and, this time, shows the ‘Loading Bay’ as ‘Vatry Int’l’ – an airport in France. It also shows a different date for the shipment, 13 March 2006, instead of 20 February 2006. The accompanying copy air-waybill (No. 757-50128676) gives a different address for Support Freight from that shown on the certificate of shipment, describes the shipment as ‘urgent courier material’ and on its face cannot be connected to the shipment by the Appellant.[63]This is the version which was sent by Mr. Acting Representative to Officer Stewart on 27 July 2010 bearing the Support Freight stamp and a stamp ‘checked 27 Jul 2010’ accompanied by a signature. Invoice 53[64]The version of invoice 53 taken away by Officer Stewart on 2 November 2006 corresponds to the Appellant’s order number ZO455/E. The order and the invoice show the customer as ‘Mrs. Egun. Adekoya, Nigeria’ without any more precise address, the date is shown as 14 March 2005, the goods sold are 12 Acer Travelmate Laptop 15” Monitors at a total price of £18,720 with no VAT added. The accompanying certificate of shipment taken away by Officer Stewart on 2 November 2006 showed the customer name as ‘S. Egun. Adekoya’, the airport of loading as ‘LHR’ (London Heathrow), the destination as ‘Lagos’ and the relative airway-bill number as 757-50109356.[65]The (unsigned) version of the certificate of shipment for invoice 53 received by Officer Stewart on 5 June 2007 showed the goods purchased and their price as the same as in the earlier version, but the date of shipment is given as 21 March 2005. The ‘Loading Bay’ was shown, again, as London Heathrow. Details were given of the airline (Airco), the supplier, the receiving agent in Nigeria, the consignor and customer (‘Mrs Egun Adekoya’ with an address in Lagos). The air-waybill number was the same as in the earlier version.[66]The version of the certificate of shipment relating to invoice 53 sent on 18 July 2007 and received by Officer Stewart on 1 August 2007 was entirely different and clearly referred to a different transaction altogether, with a customer named ‘Vera Oberabor’. The version of the certificate of shipment relating to invoice 54 sent at that time refers to the transaction with ‘Mrs. Egun Adekoya’ in that it relates to a transaction value £18,720, the same air-waybill number (757-50109356), date of shipment of 21 March 2005 etc. However the goods sold are now described as ’12 Acer Laptops, 15 Monitors’. The weight given is the same (15.21 Kg.) and so it is likely that this description was a simple error. The certificate this time was signed by an authorised signatory of Support Freight.[67]The version of the certificate of shipment relating to invoice 53 sent by Mr. Acting Representative to Officer Stewart on 24 April 2008 and received on 2 May 2008 is different from the versions sent earlier in that it bears a different authorised signatory and, this time, shows the ‘Loading Bay’ as ‘Vatry Int’l’. It also shows a different date for the shipment, 17 July 2006, instead of 21 March 2005. It also refers to a different air-waybill number (757-50136656) and describes the goods shipped as ’20 17” TFT Display Monitor, 2 Sony Notebook, 3 Acer Aspire Notebook’ with a weight of 35.22 Kg. No accompanying copy air-waybill was supplied.[68]No version of invoice 53 was sent by Mr. Acting Representative to Officer Stewart on 27 July 2010. However a stamped, checked and signed version of air-waybill 757-50136656 was sent. This described the goods as ‘Urgent Courier material’ and, as it is evidently a groupage shipment of 21 pieces of gross weight 884 Kg. there is no link on its face with the Appellant’s supply under invoice 54. However, we note that this copy air-waybill gives the flight date (date of shipment) as 31 July 2006 (not 17 July 2006 or 21 March 2005).[69]The transaction with the customer ‘Vera Oberabor’ which is recorded in invoice 53 as sent on 18 July 2007 and received by Officer Stewart on 1 August 2007, can be traced back to invoice 54 as taken away by Officer Stewart on 2 November 2006 and corresponds to the Appellant’s order number ZO471 (the customer’s name is given as ‘Vera Oberabo h ’). The order and the invoice show the customer as having an address in Benin City, and the date is shown as 28 June 2006. The goods sold are shown as a selection of items viz : 10 Belikin mini wireless optical mouses, 5 Dell Dimension 9150 systems, 1 Intel Pentium 4 refurb system, 8 Samsung Laptops, 25 value mouses, 20 Dell colour laser printers, 35 PS2/UK keyboards and 5 CD speed writers, at a total price of £24,851.65 with no VAT added. There appears to have been no accompanying certificate of shipment taken away by Officer Stewart on 2 November 2006.[70]The (unsigned) version of the certificate of shipment for invoice 53 (duplicating the invoice number in the certificate relating to the supply to ‘Mrs. Egun Adekoya’) received by Officer Stewart on 5 June 2007 showed the goods purchased by ‘Vera Oberabor’ as different (25, not 20, laser printers, 5, not 1, Intel Pentium systems, and no Dell Dimension 9150 systems), but the price was the same as in the earlier version. The date of shipment is given as 27 June 2006, a day earlier than the previous version. The ‘Loading Bay’ was shown, again, as London Heathrow. Details were given of the airline (Airco), the supplier, the receiving agent in Nigeria, the consignor and customer (‘Vera Oberabor’, but this time with an address in Abuja). The air-waybill number is given as 757-50134954.[71]The version of the certificate of shipment relating to invoice 53 sent on 18 July 2007 and received by Officer Stewart on 1 August 2007 has the same description of goods supplied and the same weight (45.22 Kg.) The certificate this time was signed by an authorised signatory of Support Freight.[72]The version of the certificate of shipment relating to the transaction with ‘Vera Oberabor’, which was sent by Mr. Acting Representative to Officer Stewart on 24 April 2008 and received on 2 May 2008 referred to invoice 54 , is different from the versions sent earlier in that it bears a different authorised signatory and, this time, shows the ‘Loading Bay’ as ‘Vatry Int’l’. The description of the goods shipped is different, in that there is no mention of the 8 Samsung Laptops and the certificate also shows a different date for the shipment, 31 July 2006, instead of 27 June 2006. It also refers to a different air-waybill number (757-50136656 – the same number as the air-waybill mentioned in one of the versions of the invoice relating to the transaction with ‘Mrs Egun Adekoye’). The accompanying air-waybill makes no reference on its face linking it with the invoice.[73]These are the versions of the certificate of shipment for the invoice 54 transaction with ‘Vera Oberador’ and the accompanying air-waybill, which were sent by Mr. Acting Representative to Officer Stewart on 27 July 2010 bearing the Support Freight stamp and a stamp ‘checked 27 Jul 2010’ accompanied by a signature. Invoice 63[74]The version of invoice 63 taken away by Officer Stewart on 2 November 2006 does not seem to correspond to any order number. The invoice shows the customer as ‘Mr. Mogaji’ without an address, the date is shown as 16 August 2005, the goods sold are ‘100 Mixed Base Units Unknown Brand, 100 Monitors Unknown Brand and 20 PB Easyone Silver 1Ghz/20gb/256m 14” TFT Monitors’ at a total price of £23,300 with no VAT added. The accompanying certificate of shipment taken away by Officer Stewart on 2 November 2006 showed the customer name as ‘Mogaji’, the airport of loading as ‘LHR’ (London Heathrow), the destination as ‘Lagos’ and the relative airway-bill number as 757-50117546.[75]The version of the certificate of shipment for invoice 63 received by Officer Stewart on 5 June 2007 showed the date as 15 August 2005, rather than 25 August 2005, as in the earlier version, the goods purchased and their price as the same as in the earlier version. The ‘Loading Bay’ was shown, again, as London Heathrow. Details were given of the airline (Airco), the supplier, the receiving agent in Nigeria, the consignor and customer (‘Michael Mogaji’ with an address in Lagos). The air-waybill number was different, this time it was 757-50114831.[76]The version of the certificate sent on 18 July 2007 and received by Officer Stewart on 1 August 2007 was the same as the version received by Officer Stewart on 5 June 2007, except that the shipment date was given as 8 June 2005, but this time it was signed by an authorised signatory of Support Freight.[77]The version of the certificate sent by Mr. Acting Representative to Officer Stewart on 24 April 2008 and received on 2 May 2008 is different from the versions sent earlier in that it bears a different authorised signatory and, this time, shows the ‘Loading Bay’ as ‘Vatry Int’l’. It also shows a different date for the shipment, 21 August 2006, instead of 8 June 2005. The relative air-waybill number is given as 757-50137990 (instead of 757-50114831). The accompanying copy air-waybill (No. 757-50137990) gives a different address for Support Freight from that shown on the certificate of shipment, describes the shipment as ‘urgent courier material’ and on its face cannot be connected to the shipment by the Appellant.[78]These are the versions of the certificate of shipping and the relative air-waybill, which were sent by Mr. Acting Representative to Officer Stewart on 27 July 2010 bearing the Support Freight stamp and a stamp ‘checked 27 Jul 2010’ accompanied by a signature.[79]Mr. Freight Forwarder, of Support Freight, gave evidence that he was told by the Appellant (presumably by Mr. Acting Representative) that the information on the original certificates of shipment issued by Support Freight was not sufficient. His evidence was that there was a visit to the Support Freight premises in 2007 by Mr. Acting Representative and Officer Chris Kent, at which he was asked to change the references to London Heathrow on the certificates of shipment to Vatry International. This was because the airline’s agents (Airco’s agents) made the arrangement that the cargo should leave from Vatry rather than Heathrow. The reason was that the rates were cheaper if the cargo left from Vatry.[80]He said that Airco’s agents had sent a message to Vatry International airport, to get copies of certain SAD documents. The SAD documents in evidence with the stamp of Vatry International indicated that they were stamped after the event (‘ Export Visa a posteriori’ ).[81]He said that a lot of information was included on certificates of shipping produced by Support Freight “which I don’t normally produce” in order to conform with requests made by Officer Chris Kent. He explained that goods were described on air-waybills as ‘courier materials’ and by similar descriptions were so described in order to achieve easier and quicker treatment once the goods arrived in Nigeria – “we pay more to deliver to the courier shed”.[82]Mr. Freight Forwarder was not able to give an explanation for the variation in dates on certificates of shipment without reference to his books. At one point he suggested the differences could relate to the date of shipment by Support Freight and the date of shipment by Airco, but he accepted that this explanation was not satisfactory where there had been a wide disparity of dates.[83]Officer Stewart’s oral evidence was that air-waybill numbers are unique, and airlines use them for tracing consignments. Therefore it was unlikely that the same air-waybill number would be used.[84]When Officer Stewart was asked in the course of the hearing to investigate further whether he could produce any additional information relating to Officer Chris Kent’s involvement in the investigation of the Appellant’s entitlement to zero-rate its supplies, he did produce two letters and enclosures written by Mr. Acting Representative to Officer Mark Sayer of the Central London Repayment Team in relation to a different VAT registered taxable person, Dealerco. The first letter, dated 16 June 2008 enclosed shipping documents, including SAD documents relating to supplies made by Dealerco. The narrative of the letter states ‘[SAD documents] attached as agreed with Chris Kent at time of visit in July 2007’. The second letter, dated 21 October 2008, enclosed a further SAD document (among other documents) and the narrative states that ‘the stamp made by the French authorities was only done after the visit by Chris Kent to the shippers ([Support Freight]) in July 2007’. The letter also stated ‘I have also asked the shipper to amend the Certificate of Shipment (copy attached) to reflect the true picture’.[85]The Tribunal’s attention was drawn to the fact that a copy of air-waybill No. 757-56009940 was enclosed with Mr. Acting Representative’s letter dated 21 October 2008 in relation to Dealerco. As it happened, an air-waybill of the same number had been sent to Officer Stewart in relation to the Appellant (supporting the Appellant’s invoice number 83) in the batch of “amended and re-signed” certificates of shipment and supporting air-waybills on 24 April 2008. A comparison of the two copy air-waybills of the same number revealed significant differences in format, in the entered gross weight (1012 on one, 1454 on the other) and in the descriptions of the nature and quantity of goods (‘electrical accessories’ on one, and ‘pharmaceutical products and metal openers’ on the other).[86]In the Appellant’s Closing Statement received (at the Tribunal’s Direction) after the hearing, Mr. Acting Representative made the point that HMRC had “shown that there were some discrepancies on some documents presented but have taken a blanket decision [ sic ]’. Mr. Acting Representative did not, either during the hearing or in his Closing Statement take the Tribunal through any of the documentation which he claimed did not show any discrepancies. In order to test the proposition, the Tribunal, on its own motion after the hearing, traced the documentation presented to support the export of goods sold by the Appellant under invoices 70 and 71. This was the first (and, because it demonstrated further discrepancies, the only) such tracing exercise undertaken by the Tribunal. Invoices 70 and 71[87]Invoices 70 and 71 were chosen because they were the invoices issued by the Appellant which were first in order in the documentation taken away by Officer Stewart on 2 November 2006 as presented in our papers. They were both invoices in respect of overseas sales to ‘Creflo Dollar’. Invoice 70 corresponded to the Appellant’s order number ZO477 and invoice 71 corresponded to order number ZO478. Invoice 70 was in respect of itemised computer accessories sold for a total price of £4,410 (to which no VAT was added). Invoice 71 was in respect of different itemised computer accessories sold for a total price of £4,435 (to which, again, no VAT was added). Invoice 70 carried the date: 24 August 2006. Invoice 71 was dated: 25 August 2006. The same address in Lagos was given for ‘Creflo Dollar’ on both invoices.[88]Officer Stewart received on 5 June 2007 two copies of a single Certificate of Shipment issued by Support Freight covering both invoice 70 and invoice 71. It noted that goods similarly described as on the invoices, to the value of £8,845 (the aggregate of the invoiced amounts given above), with a weight of 30.18 Kg., were shipped on 4 September 2006 under air-waybill 757-56000556 to Lagos from London Heathrow for consignor and customer ‘Creflo Dollar’. The certificate was unsigned.[89]The version of the certificate sent on 18 July 2007 and received by Officer Stewart on 1 August 2007 was in all material respects the same as the version received on 5 June 2007, but this time it was signed by an authorised signatory of Support Freight.[90]The versions of the Certificates of Shipment sent by Mr. Acting Representative to Officer Stewart on 24 April 2008 and received on 2 May 2008 are different from the versions sent earlier in that there are two Certificates, one each for invoices 70 and 71 respectively. However both invoices record goods sold to the weight of 30.18 Kg., the certificate for invoice 70 includes all the goods apparently sold under both invoices in the versions taken away by Officer Stewart on 2 November 2006, at the aggregate price of £8,845, while the certificate for invoice 71 shows only ‘10 Phillips 17” TFT Silver 12ms Monitor’ (part of the goods description on the certificate for invoice 70), at a weight of 30.18 Kg. and at a price of £4,435 (the original invoice value for invoice 71). In addition, these latest versions of the certificates bear the signature of a different authorised signatory of Support Freight and show the ‘Loading Bay’ as ‘Vatry Int’l’ rather than London Heathrow. Although both showing the same air-waybill number as earlier versions (757-56000556), the shipment date is now stated to have been 2 October 2006 (instead of 4 September 2006). The copies of the air-waybill supplied on 24 April 2008 confirm the shipping date as 2 October 2006 and the description of the goods as ‘Urgent Courier Material’.[91]The versions of the Certificates of Shipment covering invoices 70 and 71 which were sent by Mr. Acting Representative to Officer Stewart on 27 July 2010 bearing the Support Freight stamp and a stamp ‘checked 27 Jul 2010’ accompanied by a further signature on behalf of Support Freight were otherwise in the same form as those sent to Officer Stewart on 24 April 2008 and received by him on 2 May 2008 and described in the last paragraph (90). The submissions[92]Mr. Acting Representative, on behalf of the Appellant, submits that the relevant goods were exported to non-taxable persons outside the member States, as claimed, and that sufficient evidence of export to satisfy the conditions in Notice 703 was provided. In fact, he submits that more than sufficient evidence of export has been provided.[93]As a subsidiary issue, Mr. Acting Representative asserts that he visited the premises of Support Freight in July 2007 with Officer Chris Kent and that Officer Chris Kent had on that occasion picked out a sample shipment and had asked for documents to show that the sample shipment had taken place. Mr. Acting Representative said that original documents and copy SADs had been sent to Officer Chris Kent and that, while at Support Freight, he had ‘authenticated’ shipments. Mr. Acting Representative said that Officer Chris Kent had picked up the fact that the goods had been shipped from Vatry and not from London Heathrow and had asked for the shipping documents to show Vatry as the ‘Loading Bay’. Mr. Acting Representative also said that Officer Chris Kent had noticed that the SADs had not been stamped by Vatry and that they were sent to Vatry for stamping as a result.[94]Mr. Acting Representative claimed that Officer Chris Kent had carried out an audit exercise, comparing certificates of shipment with air-waybills and air cargo manifests together with the relative Support Freight references. He had found some discrepancies, and these were the discrepancies which HMRC had pointed out at the hearing. Mr. Acting Representative claimed that the supplies other than those which HMRC had taken as illustrations had been correctly documented and that HMRC had been wrong to take a blanket decision to disallow zero-rating on all transactions in the relevant VAT periods.[95]Mr. Acting Representative claimed that HMRC had been ‘moving the goal posts’ by requiring more and more documents as evidence of export. He complained that Mr. Singh had taken the point that the evidence supplied had been supplied out of time, when in correspondence, the emphasis had been put on the need for the Appellant to provide further evidence of export.[96]Mr. Acting Representative relied on paragraph 11.3 of Notice 703 to be able to adjust a VAT account by reference to an earlier export for which evidence of export has been obtained later. His submission was that the evidence submitted was sufficient to justify zero-rating all the transactions in issue, or at least those in respect of which HMRC had not pointed out discrepancies.[97]Mr. Singh submitted that there are numerous discrepancies present in the documentation allegedly evidencing export, which Mr. Acting Representative has produced to HMRC on various dates, raising suspicions that the documentation may have been manufactured. He contended that the Appellant had failed to comply with the conditions laid down by paragraphs 3.3 and 3.4 of Notice 703 requiring the obtaining of official or commercial evidence of export within the specified time limit (3 months) and the keeping of supplementary evidence of export transactions.[98]The supplies in issue took place between 1 October 2004 and 31 March 2007 (inclusive). Mr. Singh submitted that it cannot assist the Appellant to produce evidence of export generated long after the time of supply.[99]Mr. Singh accepted that original authenticated air-waybills and original authenticated certificates of shipment could amount to commercial evidence of export, but contended that the evidence provided by Mr. Acting Representative has been unacceptable to HMRC because it was late, because it was, as originally provided, incomplete and not authenticated. He complained that the copy air way-bills provided did not contain the clear identification of goods required by paragraph 6.5 of Notice 703. He relies on the discrepancies illustrated in relation to invoices 43, 53 and 63 as showing that the evidence supplied by Mr. Acting Representative is unacceptable as evidence of export. Discussion and Decision[100]Supplies of goods exported from the UK outside the member States do not automatically qualify to be zero-rated. Although that is the principle laid down by the applicable VAT Directives, it is qualified by the requirement that conditions laid down by the member States (here, the UK) for the purpose of ensuring the correct and straightforward application of the zero-rating provision and preventing evasion, avoidance and abuse are satisfied.[101]By regulation 129 of the VAT Regulations 1995 and Notice 703, the UK has laid down such conditions. Clearly the conditions are designed to prevent evasion, avoidance and abuse and it has not been suggested that they are not fully enforceable. Thus they constitute legal conditions which must be satisfied (in addition to the requirement that goods supplied must be exported to a non-taxable person outside the member States) before a supply can be zero-rated. If a supply has been made and cannot be zero-rated because of a failure to comply with the conditions laid down by Notice 703, then it must be standard-rated. There is no suggestion in this case that the supplies concerned have not been made. Therefore the assessments must stand unless the Appellant has been able to prove that the goods have been exported and that the conditions laid down by Notice 703 have been complied with.[102]Although the Appellant must prove two things(a) the exports; and(b) compliance with the conditions of Notice 703; and although Mr. Singh in his submissions at times cast doubt on whether the goods supplied had indeed been exported, the appeal is primarily concerned with whether or not the Appellant has complied with the conditions of Notice 703 which relate to the obtaining of commercial evidence of export.[103]We consider that in fact most, if not all, of the supplies in issue were indirect, rather than direct exports, in that the Appellant’s customers are the consignors on the certificates of shipment which we have been shown. We understand from the evidence that typically a customer buys goods from the Appellant and requires them to be sent by the Appellant to Support Freight to be shipped together with other goods bought by the same customer from other UK suppliers. Support Freight is noted as the shipper on the copy air-waybills which we have seen. On this basis, paragraph 3.4 of Notice 703, which refers to indirect exports, is relevant.[104]This paragraph requires a supplier in the position of the Appellant to obtain valid official or commercial evidence of export from its overseas customer within the specified time limits, and keep supplementary evidence of export transactions.[105]Commercial evidence of export (which is what this appeal is concerned with) must (according to paragraph 6.5 of Notice 703, which has ‘the force of law’) clearly identify: the supplier, the consignor (where different from the supplier), the customer, the goods, an accurate value, the export destination and the mode of transport and route of export movement.[106]In evidence, Officer Stewart accepted that the “amended and re-signed” certificates of shipment, with supporting air-waybills for each shipment, which were sent to him on 24 April 2008 (and received by him on 2 May 2008) showed information which would normally have been sufficient as proof of export. These were the versions which, among other things, first showed Vatry International Airport in France as the point of export from the member States.[107]However it is clear that in order to satisfy the conditions laid down in paragraph 3.4 of Notice 703 such commercial evidence of export must have been received by the Appellant within 3 months from the date of supply.[108]We are satisfied that the “amended and re-signed” certificates of shipment and supporting air-waybills which were sent to Officer Stewart by Mr. Acting Representative on 24 April 2008 had not been received by the Appellant within the applicable 3-month time limit (the supplies had taken place between October 2004 and March 2007).[109]We are also satisfied that the earlier versions of the documentation supplied to Officer Stewart before April 2008 did not comply with the requirements of paragraph 6.5 of Notice 703. To take one example of such non-compliance (and there are others), ‘the route of export movement’ was not correctly stated on any of the earlier versions of the documentation, because it referred to the ‘Loading Bay’ as London Heathrow, rather than Vatry International.[110]We make the point that the applicable 3-month time limit for obtaining evidence of export is not an insignificant requirement. We bear in mind that the conditions imposed by Notice 703 are imposed for the purpose of ensuring the correct and straightforward application of the zero-rating provisions relative to exports outside the member States and of preventing any evasion, avoidance or abuse. It is therefore entirely rational and proportionate for HMRC to impose and enforce the 3-month time limit, because not to do so would facilitate evasion or avoidance of VAT by abuse of the zero-rating provisions relative to such exports.[111]We find on the balance of probabilities that the provision to HMRC of successive versions of the export documentation by Mr. Acting Representative on behalf of the Appellant was done because Mr. Acting Representative misunderstood the requirements of Notice 703 that only documentation obtained within the 3-month time limit satisfied its requirements for evidence of export. We find that Mr. Acting Representative, when informed of the inadequacies of the documentation initially and successively provided to HMRC thought that what was required of him (outside the 3-month time limit) was to produce further and better documentation dealing with the criticisms made by HMRC of the documentation already provided. This was a misconceived approach, but we find that Mr. Acting Representative proceeded on the basis of a genuine misunderstanding.[112]It is clear that the Certificates of Shipping provided to HMRC successively at various dates in 2007, 2008 and 2010 were produced after the event and for the purposes of meeting criticisms made by HMRC of earlier versions. This is apparent from the face of the documents and it is confirmed by Mr. Freight Forwarder’s evidence.[113]Mr. Acting Representative’s misunderstanding in this regard may have arisen as a result of the visit to Support Freight which he made in the company of Officer Chris Kent.[114]We are satisfied that such a visit did in fact take place in July 2007, although it may have been in connection with the affairs of another company with which Mr. Acting Representative is connected (Dealerco), or in connection with the affairs of that company and the affairs of the Appellant. (The letters produced in evidence in relation to Dealerco’s affairs indicate that this was the case.) However, we cannot accept that Officer Chris Kent actually advised Mr. Acting Representative to obtain revised versions of documentation serving as evidence of export outside the 3-month time limit for the purpose of supporting a claim to zero-rate exports. We consider it more likely that Officer Chris Kent pointed out what the requirements for such documentation were, for the purposes of future transactions.[115]We consider that whatever transpired in the July 2007 visit involving Officer Chris Kent had no effect on any matters of relevance in this appeal. We note that Officer Stewart started his enquiries in September 2006, and took away with him on 2 November 2006 the invoices and certificates of shipment which were made available to him then. Further documentation was provided to Officer Stewart at his request in March 2007, and again in June 2007 (before the July 2007 visit involving Officer Chris Kent). Bearing in mind the requirements of Notice 703 and, in particular, the 3-month time limit, nothing occurring after July 2007 could have improved the Appellant’s case in relation to the supplies in issue in the appeal.[116]There is also the question of the discrepancies which HMRC have pointed out in the successive versions of the documentation provided. Although Airco confirmed to Officer Stewart that all 10 air-waybills chosen by him as a random sample were genuine, he was still not satisfied that they related to exports by the Appellant of electronic items or computer parts or accessories. We consider on the basis of the examination of the certificates of shipment produced for invoices 43, 53 and 63, taken as illustrative examples by Mr. Singh, and the correspondence relating to Dealerco referred to above, that HMRC, through Officer Stewart, had reason to be dissatisfied with the certificates of shipment, produced in their successive versions, as evidence of export of goods supplied by the Appellant.[117]We take full account of the fact that the goods supplied by the Appellant were intended to be aggregated into a larger load as groupage or consolidation cargo and that this would affect the description of goods on the air-waybills and the SAD documents over which the Appellant had no direct control. However, we consider that Officer Stewart reasonably required to see a documentary connection between the goods invoiced by the Appellant and the export evidence and this was not apparent on the face of any documents produced before the applicable 3-month time limit.[118]We do not accept Mr. Acting Representative’s assertion that the certificates of shipment and air-waybills for all invoices other than invoices 43, 53 and 63 showed no discrepancies. That was for the Appellant to prove, if it could. It has not done so, and in any event the correspondence relating to Dealerco and the Tribunal’s examination of the documentation in relation to invoices 70 and 71 suggests that the discrepancies were more widespread.[119]In these circumstances, we hold that HMRC reasonably refused to accept the documentation produced by the Appellant as satisfactory evidence of export of the goods supplied in the periods 12/04 to 03/07 inclusive by the Appellant, with the consequence that the assessments appealed against must be upheld.[120]The appeal is therefore dismissed. Right to apply for permission to appeal[121]This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. JOHN WALTERS QC JUDGE OF THE FIRST- TIER TRIBUNAL RELEASE DATE : 8 December 2010