“[52].While it is not for the Court to make findings of fact in this case, I do express concern about the length of the detention in Mr Gora's case from30 December 1999 until14 April 2000 when notice of seizure was given. That period of time is completely out of scale with the few days of detention which the Court was told was the normal practice….While judicial review of the detention is a remedy available to the owner, it is not one to which he should often be required to resort in this context, given the timescale contemplated. The appropriate procedure is by way of prompt enquiry and decision.” 6. The period of detention in this appeal was only a few weeks shorter than that in Gora . It was a period in which, Mr Fell accepted, the only remedy of the Appellant would have been by judicial review. 7. If the Respondent’s officers seize goods, Schedule 3Customs and Excise Management Act 1979 (“CEMA”) provides a means for the owner to require the legality of the seizure to be adjudicated by a Court in the UK. Paragraphs 3 and 4 of that schedule set out the procedure for instigating that process: "3. Any person claiming that anything seized as liable to forfeiture is not so liable shall, within one month of the date of the notice of seizure or, where no such notice has been served on him, within one month of the date of the seizure, give notice of his claim in writing to the Commissioners at any office of Customs and Excise.” 8. Paragraph 5 of the schedule provides that if the owner does not properly give such notice, "the thing in question shall be deemed to have been duly condemned as forfeited.". We discuss the effect of this statutory deeming in the following section. 9.Section 152 CEMA gives the Respondent a power to restore, subject to any conditions it thinks proper, things which have been forfeited or seized. 10.Section 14(2) Finance Act 1994 provides that a persn affected by a decision “may by …notice require” the Respondent to conduct a review of any decision in relation to that restoration power. But section 14(3) provides that the Respondent is not required to conduct a review unless that person gives notice in writing “before the end of the period of forty five days beginning with the day on which written notification of the decision… was first given to the person requiring the review”. 11. Section 15 provides: “15. Review procedure (1) Where the Commissioners are required in accordance with this Chapter to review any decision, it shall be their duty to do so and they may, on that review, either– (a) confirm the decision; or (b) withdraw or vary the decision and take such further steps (if any) in consequence of the withdrawal or variation as they may consider appropriate. (2) Where– (a) it is the duty of the Commissioners in pursuance of a requirement by any person under section 14 above to review any decision; and (b) they do not, within the period of forty-five days beginning with the day on which the review was required, give notice to that person of their determination on the review, they shall be assumed for the purposes of this Chapter to have confirmed the decision. …”
“However, the principal issue before the Tribunal, was whether the Commissioners' decision not to restore Mr Lindsay’s car to him was one that they ‘could not reasonably have arrived at’ – within the meaning of those words in section 16(4) of the 1994 Act. Since the coming into force of theHuman Rights Act 1998 , there can be no doubt that if the Commissioners are to arrive reasonably at a decision, their decision must comply with the Convention. Quite apart from this, the Commissioners will not arrive reasonably at a decision if they take into account irrelevant matters, or fail to take into account all relevant matters – see C & E Commissioners v JH Corbitt (Numismatists) Ltd[1981] AC 22 at 60 per Lord Lane. 14. In Gora Pill LJ accepted that, given the power of the tribunal to carry out a fact-finding exercise, the tribunal could decide for itself primary facts and then go on to decide whether, in the light of its findings of fact, the decision on restoration was reasonable. Thus the tribunal exercises a measure of hindsight in its assessment of the reasonableness of a decision, and a decision which in the light of the information available to the officer making it could well have been quite reasonable may be found to be unreasonable in the light of the facts as found by the tribunal. The effect of the deeming provisions of paragraph 5 CEMA 15. It was common ground that no notice within paragraph 3 Schedule 3 CEMA had been given to the Commissioners by the Appellant and that as a result the deeming provisions of paragraph 5 applied and the goods were "deemed to have been duly condemned as forfeited." 16. In HMRC v Jones[2011] EWCA Civ 824 the Court of Appeal considered the extent to which the deeming provisions of paragraph 5 precluded this tribunal from considering the facts which were concomitant of the deemed legality of the forfeiture. Mummery LJ said "71(4) The stipulated statutory effect of the respondents’ withdrawal of their notice of claim under paragraph 3 of Schedule 3 was that the goods were deemed by the express language of paragraph 5 to have been condemned and to have been “duly” condemned as forfeited as illegally imported goods. The tribunal must give effect to the clear deeming provisions in the 1979 Act: it is impossible to read them in any other way than as requiring the goods to be taken as “duly condemned” if the owner does not challenge the legality of the seizure in the allocated court by invoking and pursuing the appropriate procedure." 17. In this appeal Mr Fell accepted that the deemed factual findings which were binding on this tribunal were limited to those facts which were necessary to found the deemed decision, and that the nature of deemed facts would depend upon the factual circumstances the seizure. Thus in Jones , tobacco was seized but also the van in which it was carried. Both were deemed to be duly forfeited under paragraph 5. There was no argument that the van had been imported without the payment of duty but it had been argued that duty on the tobacco was due and unpaid. The effect of the deeming in those circumstances was to deem the tobacco to have been liable to duty and the duty not to have been paid, and to deem the van to have been used for the carriage of the tobacco. It was not to deem the van to have been imported without proper payment of duty or to deem the tobacco to have been associated with the van and forfeited by reason thereof. 18. In this appeal it is therefore necessary to determine, on the basis of the facts relating to the seizure, which facts this tribunal must treat as deemed to have been found as a basis for the (deemed) conclusion that the goods were validly seized. 19. In the circumstances of this appeal the only way that the goods could have been legally seized and forfeit is if they were liable to duty and the duty had not been paid. We must therefore proceed on that basis. Which decision? 20. Section 15(2) provides that if the Commissioners do not give notice of the determination of their review within “the period of 45 days beginning with the day on which the review was required" then "they shall be assumed for the purposes of this Chapter to have confirmed the decision”. 21. In this case the letter requiring the review was dated5 April 2012 and a decision made by Miss Bines was dated25 May 2012 : that was 50 days after the date of the letter. 22. However5 April 2012 was Maundy Thursday. Good Friday was 6 April was therefore a bank holiday; there then followed Saturday 7 April and Sunday 8 April. Monday,9 April 2012 was another bank holiday. Thus, given that it is unlikely that the post would have been opened on a Saturday, the first day on which the Commissioners could have opened the letter from M&R was10 April 2012 , and indeed the letter bore a stamp affixed by the Commissioners showing that date. It was possible however that the letter arrived on Saturday 7 April and was not opened and stamped until Tuesday 10 April. 23. If the date of receipt of the letter was Tuesday10 April 2012 and the period of 45 days began with the day of receipt of the letter then it ended on24 May 2012 which was the day after the review letter was posted to the appellant. The appellant told us that it was received some days later. If the date on which HMRC are required by section 15(2) to “give notice “ of their review is the date of receipt of the letter requiring a review, then it was given more than 45 days after the date the review was required (whether that date is taken as 10 April or 7 April), and accordingly they would be deemed by section 15(2) to have confirmed their original decision. 24. Two questions therefore arise: (a) as a matter of law, from and to which days the 45 days run; and (ii) as a matter of fact, when the requirement to review and notice of determination were sent or received. 25. The possibility that the review letter had not been sent in time had not occurred to the parties before the hearing. We therefore sought their written submission on the issue. We were most grateful for their efforts. Mr Fell produced an analysis with which both we and Mr Baig agree, and which we can do no better than to repeat: 9.1 The date on which the Commissioners are “ required to review ” a decision (within the meaning of sections 14(2) and 15(2)) and the date on which notice is “ given ” to the Commissioners requiring them to review a decision (within the meaning of section 14(3)) should be read as the same date. This accords with the natural reading of these phrases. It also avoids the odd consequence that the 45 day time limit within which the Commissioners must give notice of a review under section 15(2) (which is stated to run from the date on which the Commissioners are “ required ” to review a decision) starts to run from a different date from that on which the deadline for the taxpayer to “ give ” notice requiring a review under section 14(3) expires. 9.2 The natural reading of the phrases “ require…to review ” and “ notice requiring the review is given ” – especially when read as co-extensive – is that these events will occur on the date the Commissioners receive the notice requiring them to review the decision. That is, the date the notice arrived at its destination – as opposed to the date it was dispatched or posted or the date it was opened. 9.3 This construction is supported, at least implicitly, by two decisions: (a) In BT Trasporti SRL v Director of Border Revenue[2010] UKFTT 287 (TC) , the Tribunal held at paragraph 32 in relation to section 14(3) of FA 1994 that “the more normal meaning of giving notice” is that “notice is given when received, and not merely when posted”. (b) This approach is reflected, implicitly, in the decision of Mr Justice Park in Customs & Excise v Telford Tower & Scaffolding Ltd[2002] EWHC 2994 (Ch) . At paragraph 9(v) and (vi) the judge states that the appellant required a review “ by a letter from its solicitors dated 10 th August 2001 ” and that on “ 27 th September 2001 the 45-day time limit for a review to be carried out expired ” with the consequence that there was a deemed decision under section 15(2) of FA 1994. Whilst the point is not explicitly considered by the Judge, the date he gives for expiry of the time limit only makes sense on the assumption that the 45 day time limit runs from the date of receipt of the notice requiring a review rather than the date of that notice or the date it is posted. 26. Mr Fell adds that though not relevant to this legislation this construction is consistent withsection 7 of the Interpretation Act 1978 , which provides that “Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” is used)…the service is deemed…to have been effected at the time at which the letter would be delivered in the ordinary course of the post”. 27. The parties agree that the 45 days include the day on which the review was required or the notice given because the time limit is stated in section 15(2) to be “45 days beginning with the day on which the notice was required”
“ I do not accept Mr Maugham’s further submission that because they were different (assuming they were) from the reasons which underlay Mr McWilliams original refusal ... it was not open to the Commissioners to advance as reasons the matters set out in their statement of case before the Tribunal.Section 15(1) of the 1994 Act empowers the Commissioners to confirm or withdraw or vary a decision when required to carry out a review of that decision under chapter II of the Act. Implicit in this is a freedom, even when confirming it decision, to give reasons for the decision which are different from those which originally led to its making. Where, as here, the Commissioners fail within the stipulated period to give to the person acquiring the review notice of the determination of that review, it is assumed that they have confirmed the decision. I do not consider that that means that the Commissioners are bound by the reasons originally given for the decision thereby confirmed. Were it otherwise, and it was plain that the reasons originally given were manifestly bad but the decision could be justified on other grounds, the (almost) inevitable consequence is that an appeal to the Tribunal against the decision would result in the matter having to be referred back to the Commissioners for a further review in accordance with section 16(4)(b) (assuming the circumstances were not within section 16(4)(c)). In my judgement therefore, the Commissioners were entitled to advance, as in their statement of case before the tribunal they did, reasons for the decision not to return the vehicle which were different ... from the reason from the reasons which had led [ to the original] decision ..." 32. In the present appeal the reasons given in the original decision were - as will be seen below - (a little) more elaborate than those given in Alzitrans , and before us HMRC relied upon the reasons given in their pleadings and by Miss Bines in her review decision. 33. Mr Baig says that the assumption made by Blackburn J, and on which his reasoning is based, that "the circumstances were not within section 16(4)(c)", may not be justified in this appeal since it was likely that HMRC had destroyed the alcohol which was, he says, at the time of the seizure, close to its sell by date. 34. It seems to us that there was some force in this submission. If the decision could not be rectified then the only remedy we could confer would be to give directions for the future. Such directions would necessarily relate to the original decision, which could no longer be remedied - not any later justification of it – because it will be the effect of that original decision which cannot be remedied. In such circumstances the object section 16(4)(c) is to prevent the recurrence of what was unreasonable in the original decision, and cannot be to give the appellant a second chance to have his goods restored. Thus it was only where the goods could still be restored that it made sense effectively to elide the original decision and any second decision on review. 35. However, in this case we were not told that the decision could not be remedied by a further review. We shall return to the issue at the end of the decision, but, because of the possibility that section 16(4)(c) is relevant, and accordingly that Blackburne J’s reasoning is not applicable, we consider both Mr Rogers’ decision taken on its own, and then also that of Miss Bines taken together with her evidence before us and Mr Fell’s submissions. 36. Mr Baig says that, if we do consider reasons other than those of Mr Rogers, we should only consider those reasons to which the Appellant had had a fair opportunity to respond. He says that to the extent additional evidence was disclosed only at the hearing it should be disregarded. In that regard he says that we should therefore ignore the contents of the visit report (the “Smith Report") disclosed by HMRC during the hearing. We address the issue of the Smith Report below. In the light of our conclusions we do not need to address this argument further. The Evidence and Our findings of fact. 37. We had before us a bundle of copy documents. We heard oral evidence from Miss Bines. Mr Baig told us a number of things, we understood on the instructions of Mr McFarlin of M&R, who sat beside him, and Mr Shah, the director of the appellant, who sat behind him. Neither Mr McFarlin nor Mr Shah gave oral evidence. Thus our ability to test these statements and to ask other questions was limited. In addition to the facts in the Introduction we find as follows. Where we recount statements made to us we accept the facts recounted unless otherwise apparent. 38. Mr Baig told us that Akshay Shah was the owner and (we assumed sole) director of two limited companies. The business of one of these was that of a convenience shop carried on at 7 Civic Square, Tilbury, Essex. The other company was Nas & Co Ltd, whose business encompassed the wholesale of drinks, and which used 8 Civic Square as an office (and indeed to which invoices appear to have been addressed). 39. M&R told HMRC in a letter of30 January 2012 that "Mr Shah's accountant has amended the trading address of the company to Mr Shah's home address". Mr Baig told us that thereafter 8 Civic Square was used for a retail sales business. 40. Mr Baig told us that Nas & Co Ltd stored the drinks in which it traded at the premises of River Cash & Carry ("RCC") in Grays, Essex. M&R told HMRC in a letter5 April 2012 that RCC also bought goods from Nas & Co. 41. On Friday4 November 2011 HMRC officers stopped a lorry unloading alcoholic goods outside RCC's warehouse. It appeared that neither the driver of the lorry nor a worker who was in the warehouse could give the officers any paperwork relating to the contents of the lorry. Miss Bines told us that the officers seized the lorry and its contents. She said that no claim contesting the seizure or any request for restoration of the goods or the lorry had been made. 42. The officers later also detained and, we understand removed, a large quantity of alcoholic products from the premises of RCC. This appeal concerns some of those. Not all the alcohol at the warehouse was seized. 43. During the course of the officers' activities Mr Shah arrived. He was interviewed by one of the officers. The officer's notes of the interview record that after 15 minutes or so the officer cautioned Mr Shah and after that Mr Shah said he was happy with the record made thus far. Mr Shah signed the notes of the interview at the end. The notes record that Mr Shah said that: (1) the registered address of the Nas & Co was his home address; (2) he had been asked to attend at RCC's premises by Mr Singh, the owner of RCC; (3) he had organised the supply of wine on the lorry. He had agreed its purchase from a supplier which was new to him, Britannia Ltd, a company owned by Farouk Khan. He had agreed to buy the wine at£13.99 a case and was intending to sell it at£14.99 a case; (4) payment for the wine on the trailer had not been made. He expected to pay on Monday,7 November 2011 ; (5) in relation to the supply of the goods on the lorry, he said that he was used to his suppliers having paperwork from bond. But he had had a phone call from Mr Khan who said that he would provide the paperwork on Monday, it being difficult to get it on Friday; and (6) in response to the officers question "do you know anything about [the] stock inside [the] unit?" He said "No. I don't visit. I just know I have supplied them in the past." He thought that the last supply he had made was about a month ago. 44. The officer’s note makes no mention of Mr Shah being asked anything else about wine and beer at RCC's premises. Miss Bines' review letter states that after the interview HMRC officers went into RCC’s premises and interviewed Manjit Singh Virk (whom we took to be the Mr Singh mentioned by Mr Shah). In the course of this interview invoices relating to the goods in the warehouse were provided to the officers. Some of these invoices were from Nas & Co. It appears from Miss Bines’ letter that the officers determined which parcels of wine and beer at RCC's premises were covered by the invoices provided, and which were not, and that they detained those packages which they determined were not. 45. On the same day HMRC sent a Notice of Goods Detained to RCC, listing 19 packages of wine and beer, and stating the reason for detention as "Production of Invoices". 46. Mr Baig told us that on14 November 2011 Nas & Co and RCC provided further invoices to HMRC at their Chelmsford office. Miss Bines' letter of review recites that on that day and RCC provided further invoices. She says that these comprised: (1) invoices from Palace Drinks to Nas & Co for Echo Falls wines and to GS Wines, a businesss associated with RCC, for Echo Falls, Skol and Carlsberg Special, and (2) invoices to Glenn & Co for Pone wines. 47. Items 1 - 12 on the list of detained items were Pone and Tervini wines. On27 January 2012 HMRC sent RCC a notice of seizure of these wines. The appellant maintains no interest in these wines. They appear to have belonged to RCC. Miss Bines told us that no claim contesting seizure or for restoration had been made in respect of them. 48. Items 13 - 19 on the list of detained packages included Echo Falls red and white wine, and packages of various beers (and lagers). Nas & Co assert ownership of these packages. On2 February 2012 HMRC sent a notice of seizure of these items to RCC, explaining that they considered them liable to forfeiture as goods on which duty was due and had not been paid. 49. Six days later, on8 February 2012 , RCC wrote to HMRC saying that the goods were owned by Nas & Co. The notice was sent by RCC to Nas & Co, and, on28 February 2012 , M&R wrote to HMRC on behalf of Nas & Co enclosing copies of invoices to Nas & Co from (1) Glenn & Co and (2) Palace Drinks, which related to the beers and to the Echo Falls wines in the detained items. M&R sought restoration of the seized items. 50. On8 March 2012 Mr Rogers of HMRC wrote to Nas & Co refusing restoration. 51. In their letter dated5 April 2012 M&R sought a review of Mr Rogers' decision. This letter described the results of the investigations into the supply chain which had been undertaken by M&R and Nas & Co. 52. This investigation showed that Palace Drinks had said that the wines (the Echo Falls red and white wines) had been supplied by Pantelis, and formed part of the consignment purchased by Pantelis on the whole of which excise duty had been paid on removal from bond at Dynamic Storage. Copies of Pantelis' invoice and the forms W5 in relation to the payment of duty on the release from bond of the wines were enclosed. 53. Miss Bines then made her review decision. In making that decision she took account of a report prepared by Mr Smith ( the “Smith Report”) in relation to which we make findings later in this decision. 54. After this M&R made further enquiries. It will be recalled that M&R had sent HMRC a copy of an invoice from Glenn & Co dated31 October 2011 which included 80 cases of Special Brew. M&R obtained a copy of an invoice from Spice Can & Bottle Limited to Glenn & Co of13 September 2011 which included 80 cases of Special Brew, and an excise duty invoice from Seabrook Warehousing to Spice Can & Bottle which referred to the intake into bond of 80 cases of Special Brew, together with a dispatch note of16 September 2011 from Seabrook to Spice Can & Bottle which included 80 cases of Special Brew. Summary of the documentary evidence before the tribunal in relation to items 13 to 19 of the detained items 55. In summary the evidence before us in relation to the detained items’ provenance was : (1) Items 13 and 14 related to Echo Falls wine supplied to the appellant by Palace Drinks, which itself had been supplied by Pantelis. No Pantelis invoice was before the tribunal, but copies of forms W5 were supplied which indicated that Pantelis had paid excise duty on a total of 3,780 litres of wine. The invoices from Palace to the appellant were for a total of 3,780 litres of Echo Falls red and white wine, but also included 1,270 litres of Echo Falls Rosé. (2) Item 15 was for 320 cases of Skol Super. This quantity of this lager appeared on the invoice to Nas & Co from Glenn & Co. There was also an e-mail from Glenn & Co asserting that the goods sold were duty-paid and that HMRC had already checked with them and taken a copy of their invoice to the appellant and the duty-paid certificate. The Spice Can and Bottle invoice to Glenn & Co related to 80 cases. (3) Item 16 was 170 cases of Tenants Super; 130 cases appeared on the invoice from Glenn & Co. The Spice Can and Bottle invoice to Glenn & Co related to 90 cases. (4) Item 17 was 240 cases of Heineken, this quantity appeared on the invoice from Glenn & Co. The Spice Can and Bottle invoice to Glenn & Co related to 80 cases. (5) Item 18 was 80 cases of Special Brew. This appeared on the invoice from Glenn & Co, and on the invoice to Glenn and Co from Spice Can & Bottle, to whom Seabrook had invoiced the duty payable. The Spice Can and Bottle invoice to Glenn & Co related to 80 cases. (6) Item 19 was 113 cases of Guinness, 144 of which appeared on the invoice from Glenn & Co. The Spice Can and Bottle invoice to Glenn & Co related to 72 cases. 56. The copy of the invoice from Glenn & Co before us was in standard invoice format but not on any form of preprinted headed paper. It looked somewhat like a printout of what would be printed by a standard accounting software package onto headed paper. It bore no contact details other than Glenn & Co’s address. It included the supplier’s VAT number but not that of the customer. 57. We conclude that it is likely that, by reason for the form W5, Pantelis and an officer of HMRC thought that duty had been paid on the wines which Nas & Co received from that source. We also conclude that there was evidence that Glenn & Co had reasonably concluded that some of the goods it had supplied to Nas & Co were duty paid. The letter of8 February 2012 58. Mr Rogers’ letter was short. The paragraphs of substance were these: “It is not general policy to restore goods however I have considered your application outside of that policy and cannot allow restoration as I believe it constitutes offences contrary to S170(A) of the Customs and Excise Management Acts 1979. “Factors taken into account included: 1. The departmental policy not to restore seized goods. 2. During a cautioned notebook interview Mr Shah made no claim of ownership for any of the goods inside River Cash and Carry.” 59. Section 170A CEMA provides as follows: “ Offence of handling goods subject to unpaid excise duty. E+W+S+N.I. (1)Subject to subsection (2) below, if— (a)after the excise duty point for any goods which are chargeable with a duty of excise, a person acquires possession of those goods or is concerned in carrying, removing, depositing, keeping or otherwise dealing with those goods; and (b) at the time when he acquires possession of those goods or is so concerned, a payment of duty on the goods is outstanding and has not been deferred, the conduct of that person falling within paragraph (a) above shall attract a penalty undersection 9 of the Finance Act 1994 (civil penalties) which shall be calculated by reference to the amount of the unpaid duty. “(2)Section 10 of the Finance Act 1994 (exception to civil penalty in cases of reasonable excuse) shall not apply in relation to conduct attracting a penalty by virtue of subsection (1) above; but such conduct shall not give rise to any liability to a penalty under section 9 of that Act if the person whose conduct it is satisfies the Commissioners or, on appeal, a VAT and duties tribunal, that he- (a)acted in accordance with the directions of, or with the consent of, the proper officer; or (b)was not himself the person, or one of the persons, liable to pay the unpaid duty and at the time when he acted either— (i)had no grounds for suspecting that the goods were chargeable with a duty of excise that had not yet been paid; or (ii)believed on reasonable grounds that the duty had been paid or its payment deferred or that the liability to pay the duty had not yet taken effect.” 60. Mr Rogers’ reference to “offences” under section 170A does not make clear when he considers the offence was committed or by whom. Plainly he cannot mean that the restoration of the goods would constitute an “offence” otherwise the power of restoration of goods on which duty had not been paid would be almost nugatory. We take him to mean that Mr Shah or Nas & Co had committed an “offence” in having possession of the goods. 61. It will be seen that if Nas & Co, or Mr Shah, was not the person liable to pay the excise duty on the wine, and if they had no grounds for suspecting non payment, or reason to believe that duty had been paid, a penalty under section 170A would not have been due even if on the delivery of the goods to RCC’s warehouse it could be said that Nas & Co or Mr Shah had possession of them. Mr Rogers does not address these issues. Our assessment: the letter of8 February 2012 62. We undertake our consideration of this letter with two propositions in mind: (i) if this decision was not reasonable then any deemed confirmation of it cannot be reasonable, and (ii) if this is not a case to which section 16(4)(c) applies - so that Blackburne J’s reasoning for considering evidence and reasons not in the original decision might not apply – that it may be necessary to limit our consideration to this decision for the purpose of considering whether any direction should be made under section 16(4)(c). 63. Mr Baig says that there is not much to go on in this letter, but what there is is not reasonable. Among other things it makes no mention of the invoices which the Appellant provided to HMRC which were relevant to the bona fides of the Appellant. 64. Mr Fell says that, properly understood, the reference to section 170A is simply recognising - rightly - that duty evasion is a serious matter and not stating that Nas &Co had committed an offence. He says that the letter properly, even if a little inaccurately, takes into account HMRC’s policy, and legitimately and relevantly refers to the fact that no claim was made by Mr Shah at the time of detention. 65. He says that, read in the context of the necessary assumption that the goods were dutiable and that duty had not been paid, even if there were inadequacies in the decision embodied in that letter, it would have been inevitable that the same decision would have been made. 66. In Golobiewska v Customs and Excise[2005] EWCA Civ 607 Lloyd LJ spoke of the duty of a court or tribunal to give reasons. He cited the oft quoted passage of Henry LJ in Flannery : "' The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties −especially the losing party − should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex p Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not. (2) The first of these aspects implies that want of reasons may be a good self−standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself. (3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. …The rule is the same: the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.'….)” 67. Mr Fell said that HMRC accepted that it had a duty to give reasons for a decision of this nature and that the principles enunciated by Lloyd LJ in Golobiewska were instructive (although not strictly applicable) in relation to the extent of that duty, although he submits that before a tribunal a decision letter may be further explained by other evidence. 68. In the case of Mr Rogers’ letter no additional evidence was adduced to us. It seems to us that where no further evidence or reasons are offered or where it is not appropriate to take them into account (where perhaps section 16(4)(c) is apposite), the reasonableness or otherwise of the decision must be judged by reference to the terms of the letter only . We note that Mr Rogers says that his reasons “include “ the two he specifies. Without further evidence that he took anything else material into account, and bearing in mind HMRC’s acceptance of its duty to give reasons, we conclude that no other material reasons support the decision. 69. We start by recognising a degree of confusion in two parts of Mr Rogers’ letter. He says that the policy is not to restore in his numbered paragraph 1 but says that the policy is not generally to restore in the opening paragraph. However we read numbered paragraph 1 as merely a defective repetition of the opening words, not as simply the following of a blanket policy never to restore. 70. We also note that his description of what Mr Shah said in the interview was that Mr Shah had made no claim of ownership: what Mr Shah is recorded as saying is that he did not know anything about the goods in the warehouse. A fair deduction from that statement might be that he did not claim ownership; it might have been better to have phrased his reason in that manner, but his statement is not an unreasonable conclusion. 71. Apart from an acknowledgement of M&R’s letter requesting restoration, Mr Rogers does not indicate whether he has considered the information supplied by Nas & Co to HMRC, nor does he say what aspects of the goods and their seizure he considered, although it appears that he did look at the officer’s notebook. 72. It seems to us that it is not possible to read Mr Rogers’ statement in relation to section 170A as merely a statement that duty evasion was a serious matter. It also seems clear that this factor was something he considered relevant in reaching his conclusion. As we have said, in order to reach such a conclusion Mr Rogers would have had to have concluded that Mr Shah or Nas & Co did not come within section 170A(2). The failure either to consider why that was not the case, or, if in fact Mr Rogers did consider it, the failure to explain his reasons for concluding that section 170A(2) was not applicable seems to us to make his decision unreasonable. 73. Whilst Mr Rogers was, by reason of para 5 Sch3, entitled, and indeed bound, to work on the basis that the goods were liable to duty and that duty had not been paid, the issue of whether or not a person had no reason for suspecting duty had not been paid on the goods, and whether or not he reasonably believed that duty had been paid are in our view relevant considerations in relation to whether or not to restore goods. Indeed Miss Bines told us that HMRC’s policy in relation to the consideration of restoration of a vehicle used to carry illicit goods treated the innocence of the owner as being a possible ground for deviating from the general non restoration policy. The invoices provided by Nas & Co should at least have prompted some consideration of this issue. But there is no hint in Mr Rogers’ letter that it was considered. The failure to consider this potentially relevant factor also makes the decision unreasonable. 74. We therefore find that Mr Roger’s decision was not one which could reasonably have been arrived at. 75. If the relevant question for us is whether the confirmation of that decision assumed to take place by section 15(2) was a reasonable confirmation and we were not permitted to have recourse to evidence or reasons other than those in that letter, we would return the same answer. The deemed decision was not reasonable because it would have been unreasonable to have confirmed an unreasonable decision. 76. We shall return to the question of inevitability raised by Mr Fell after our consideration of Miss Bines’ review letter. Miss Bines’ review letter of25 May 2013 . 77. Miss Bines’ decision was quite a different kettle of fish. We also had the benefit of a witness statement supplementing her decision and her oral evidence. We accept Mr Fells’ submission that the reasons for her decision may properly be assessed by reference to the sum of the terms of that decision and her oral evidence. 78. Her letter set out a detailed history of the seizure and summarised the correspondence. It was plain that she had considered all the primary facts. She explained that she had not considered the legality of the seizure: implying that she worked on the basis that it had been legal. Although she did not say so expressly it is clear that she also worked on the basis that the goods had been liable to duty and that it had not been paid. 79. She set out HMRC’s policy – which she said was not to restore, although she noted in her witness statement that restoration could be offered in exceptional circumstances. In that witness statement she gave examples of circumstances which could warrant restoration and of factors which could weigh against restoration in those circumstances. 80. In her letter (addressed to M&R) she concludes that the information given was such that she “did not find the mitigation tenable”
“ where the tribunal are satisfied that the Commissioners or other person making that decision could not reasonably have arrived at it”
“It was conceded by Mr Englehart, in my view rightly that where it is shown that had the additional material been taken into account, the decision would inevitably have been the same the tribunal can dismiss the appeal”