Boston Ltd v Director of Border Revenue (EXCISE DUTY RESTORATION OF GOODS (see also EXCISE APPEAL) : Dismissed on facts) [2015] UKFTT 534 (TC)

FTT-Tax
Boston Ltd v Director of Border Revenue (EXCISE DUTY RESTORATION OF GOODS (see also EXCISE APPEAL) : Dismissed on facts)
[2015] UKFTT 534 (TC) · 2015-10-20
[19]It is appropriate at this stage to explain that the jurisdiction of the Tribunal in an appeal such as this is limited. As is clear from s 16(4) of the Finance Act 1994 the issue for us to determine is whether, having regard to our findings of fact, the decision taken by UKBF not to restore the Goods to Boston is proportionate and one that could reasonably have been reached. It is not sufficient that we might ourselves have reached a different conclusion . 20. As Lord Phillips of Worth Matravers MR (as he then was) said in Lindsay v Commissioners of Customs and Excise [2002] STC 508 at [40]:
“… 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” 21. For Boston, Mr Vadera contends that the first three of the seizures of goods in 2013 caused the company to “clean up its act”
. He says that it now has a full understanding of export controls and has introduced internal and external training for staff and operational systems to prevent similar situations occurring in the future. He explained that the fourth seizure was the result of a misunderstanding by freight forwarders and that that the failure to apply for an export licence for the Goods was because of their similarity with those that the BIS Export Control Organisation had stated, in the letter of 6 June 2014 (see paragraph 10, above), did not require an export licence. 22. Miss Barnes, for UKBF, contends that the decision not to restore the Goods was reasonable. She referred to the evidence of Officer Brenton that having had the benefit of hearing the evidence of Mr Vadera and Mr Howard he would have maintained his decision not to restore the Goods and emphasised that this was the fifth occasion on which Boston’s goods had been seized in the absence of an export licence. As there were no exceptional circumstances she submits that the appeal should be dismissed. 23. We consider Officer Brenton’s decision not to restore the Goods reasonable in the circumstances that there had been four seizures in the latter half of 2013 and Boston had made no enquiries of SPIRE as to whether the Goods required a licence. It is apparent from the letter of 17 October 2014 and his evidence before us that Officer Brenton did take account of all relevant matters. There has been no suggestion that irrelevant matters were a factor in the decision of UKBF. 24. However, we find the language used by Officer Brenton in that letter to Boston, particularly his reference that Boston’s explanations are “clearly at variance and appear to be another example of your company’s cavalier attitude to export controls”, to be intemperate and inappropriate in the circumstances of this case. Goods had been restored on previous occasions once the export licences had been obtained by Boston and, as Officer Brenton, himself, said goods would not be restored without a licence being obtained. The evidence contained a letter from BIS dated 30 June 2014 about the Goods stated that:
“OGEL [Open General Licence] coverage for this class of information security product was expected to be in place for June 2014…..since it is expected to be removed from control in due course ….Wording of the OGEL, which would have India as an eligible destination is nearing final completion…”
. We consider it a natural commercial step for Boston, which Mr Vadera said was a “medium sized” business with a turnover of “£ millions”, to take to apply for, and obtain, an OGEL on 21 August 2014. 25. It therefore follows that we find the decision not to restore the Goods to be reasonable and proportionate having regard to all the circumstances of the case. 26. As such, and for the above reasons, the appeal is dismissed. Right to Apply for Permission to Appeal 27. 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 BROOKS TRIBUNAL JUDGE RELEASE DATE 28 October 2015 APPENDIX Legislation referred to in the Decision Customs and Excise Management Act 1979 Section 139 – Provisions as to detention, seizure and condemnation of goods, etc. E+W+S+N.I. Any thing liable to forfeiture under the customs and excise Acts may be seized or detained by any officer or constable, or any member of Her Majesty’s armed forces or coastguard. Section 152 – Powers of Commissioners to mitigate penalties, etc. E+W+S+N.I. The Commissioners may, as they see fit – (a) … (b) restore, subject to such conditions (if any) as they think proper, anything forfeited or seized under the Customs and Excise Acts.” Finance Act 1994 Section 14 – Requirement for review of a decision. E+W+S+N.I. (1) … (2)Any person who is – (a) a person whose liability to pay any relevant duty or penalty is determined by, results from or is or will be affected by any decision to which this section applies, (b) a person in relation to whom, or on whose application, such a decision has been made, or (c) a person on or to whom the conditions, limitations, restrictions, prohibitions or other requirements to which such a decision relates are or are to be imposed or applied, may by notice in writing to the Commissioners require them to review that decision. Section 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. Section 16 – Appeals to a tribunal (1) An appeal against a decision on review under section 15 … may be made to an appeal tribunal within the period of 30 days beginning with the date on of the document notifying the decision to which the appeal relates. … (4) In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of an appeal tribunal on an appeal under this sections shall be confined to a power, where the tribunal are satisfied that the Commissioners or other person making that decision could not reasonably have arrived at it, to do one or more of the following, that is to say– (a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct; (b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision; and (c) in the case of a decision which has already been acted on or taken effect and cannot be remedied by a further review, to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future.