“The general policy is that private vehicles should not normally be restored. The policy is intended to be robust so as to protect legitimate UK trade and revenue and prevent illicit trade in excise goods. However vehicles may be restored subject to conditions (if any) (e.g. for a fee) in the following circumstances:– · If the excise goods were destined for a supply on a "not for profit" basis, for example, for reimbursement at the cost of purchase but not including any contribution to the cost of the journey. · If the excise goods were destined for supply for profit, the quantity of excise goods is small, and it is a first occurrence. · If the vehicle was owned by a third party who was not present at the time of the seizure and was either innocent or had taken reasonable steps to prevent smuggling in the vehicle. In all cases any other relevant circumstances will be taken into account in deciding whether restoration is appropriate.”
“‘Not for Profit’ The policy for seized vehicles involved in smuggling excise goods which are not for own use, but are to be passed on to others on a ‘not for profit’ reimbursement basis, is:– In non-aggravated cases vehicles will not normally be seized (but a warning letter will be issued). The meaning of “aggravated” is explained below. Aggravated cases depend on how many aggravated offences had occurred within the previous 12 months: For a first aggravated detection vehicles will normally be seized and restored for 100% of the revenue involved. For a second aggravated detection vehicles will normally be seized and restored for 200% of the revenue involved. For a third or subsequent aggravated detection vehicles will normally be seized and not restored unless there are exceptional circumstances. The 100% and 200% restoration fees are subject to a maximum of the trade buying price of the vehicle in Glass’ guide. In all cases any other relevant circumstances will be taken into account in deciding whether restoration is appropriate. The meaning of “Aggravated” in ‘not for profit’ cases Aggravating circumstances include:– Any previous offence by the individual Large quantities, for example more than · 5 kg of handrolling tobacco or · 6000 cigarettes or … Any other circumstances that would result in restoration not being appropriate.”
“As you have not claimed that the excise goods were to be passed on to others on a ‘not for profit’ reimbursement basis I have concluded that they were held for profit and the vehicle should therefore not normally be restored. Non-restoration is fair, reasonable and proportionate in the circumstances. … For first offences involving small quantities of excise goods the Border Force policy is to consider restoring vehicles even if the goods were held for profit. However, because 10 kg of tobacco does not qualify as a small quantity, I have not applied the provision.”
“We cannot afford this amount. When they seized our car they took my saving what was the car and now I’m out of work. We live with my father in law because we can’t afford anywhere else. They took the tobacco and now want£833 . We have nothing. I don’t feel I should have to pay the duty when they have taken all the tobacco including my vehicle.”
“The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.”
“Those who deliberately use their cars to further fraudulent commercial ventures in the knowledge that if they are caught their cars would be rendered liable to forfeiture cannot reasonably be heard to complain if they lose their vehicles. Nor does it seem to me that, in such circumstances, the value of the car used needs to be taken into consideration. Those circumstances will normally take the case beyond the threshold where that factor can carry significant weight in the balance. Cases of exceptional hardship must always of course be given due consideration.”
“… where the importation is not for the purpose of making a profit, I consider that the principle of proportionality requires that each case should be considered on its particular facts, which will include the scale of importation, whether it is a ‘first offence’, whether there was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship that will be caused by forfeiture. There is open to the Commissioners a wide range of lesser sanctions that will enable them to impose a sanction that is proportionate where forfeiture of the vehicle is not justified.”
“The Court of Appeal in Clarks of Hove v Bakers’ Union[1978] 1 WLR 1207 held (at page 1216) that in the context of “special circumstances, the word ‘special’ means “something out of the ordinary, something uncommon. In Crabtree v Hinchcliffe[1971] 3 All ER 967 Lord Reid said (at page 976) that “‘special’ must mean unusual or uncommon – perhaps the nearest word to it in this context is ‘abnormal.’”
“… the ‘circumstances’ are normally something external to the person doing the action in question, in contrast to something within his control. So an illness, a burglary or … where incorrect information is provided to the taxpayer by HMRC – may all constitute ‘circumstances.’”