Majestic Global FZ-LLC v The Commissioners for HMRC [2025] UKFTT 1061 (TC)

[2025] UKFTT 01061 (TC)

Case No TC09620

FIRST-TIER TRIBUNAL

TAX CHAMBER

Hearing Heard on: 25 April 2025

Date Judgment date: 4 September 2025

Appeal reference: TC/2023/11003

STRIKE OUT - held that these appeal proceeding are struck out on the basis that the tribunal does not have jurisdiction to hear them as the appellant has no standing under s 16(2A) of the Finance Act 1994 in relation to decisions made by HMRC to impose conditions on certain approvals and registrations held by another party for excise duty purposes

Before

TRIBUNAL JUDGE HARRIET MORGAN

Between

MAJESTIC GLOBAL FZ-LLCAppellant

THE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondent

Mr Tristan Thornton of TT Tax, adviser to the appellant for Appellant

Mr Howard Watkinson of counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs for Respondents

DECISION

[1]The hearing was to consider HMRC’s application made pursuant to rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (SI 2009/273) (“the Rules”), for the tribunal to strike out the whole of the proceedings on the basis that the tribunal does not have jurisdiction in relation to them.

[2]By a notice of appeal dated 19 September 2023 the appellant sought to appeal against three decisions notified by HMRC to CMBC Supply Ltd (“CMBC”) dated 2 December 2022:(1) A decision which HMRC stated was made under s 92(7) of the Customs and Excise Management Act 1979 (“CEMA”), by which HMRC imposed conditions on CMBC’s general storage and distribution warehouse approval such that CMBC was not permitted to dispatch or sell goods under duty suspension arrangements to Majestic Global FZE (“Majestic”), or make any duty paid supplies to Majestic with the intention of, or facilitating any party, claiming duty drawback (“the warehouse approval decision”).

(2) A decision which HMRC stated was made under ss 41A and 47 of the Alcoholic Liquor Duties Act 1979 (“ALDA”) and Regulation 6(7) of the Beer Regulations 1993 (“the Beer Regulations”), by which HMRC imposed conditions on CMBC’s producer and holder of beer registration such that CMBC was not permitted to dispatch or sell goods under duty suspension arrangements to Majestic, or make any duty paid supplies to Majestic with the intention of, or facilitating any party, claiming duty drawback. (“the beerregistration decision”).

(3) A decision which HMRC stated was made under s 88C(5) ALDA, by which HMRC imposed conditions on CMBC’s Alcohol Wholesaler Registration Scheme approval such that CMBC was not permitted to make any duty paid supplies to Majestic with the intention of, or facilitating any party, claiming duty drawback (“the AWRS decision”).

[3]The covering letter to CMBC dated 2 December 2022 (“the covering letter”) stated the following: “HMRC is imposing these conditions due to the significant risk of outward diversion fraud within the Majestic Global FZE supply chain. This risk could lead to a significant excise duty loss to HMRC. As previously discussed…HMRC has been unable to satisfactorily demonstrate that 40% of movements consigned to Majestic Global FZE, checked over an 11 month period, have actually left the UK. We have given ample opportunity for relevant parties to provide evidence of these movements leaving the UK, however, we have not received sufficient evidence to date. We acknowledge your response of 31 August 2022 explaining that the movements had been closed on EMCS. However, this does not provide the required evidence to show that the alcohol left the UK. We will review the conditions every 30 days, taking into account any new information or records received. If we are not satisfied that the required evidence has been provided, the conditions will remain in place. Evidence of the alcohol leaving the UK and being delivered to the intended destination warehouse could include:-• Gate log or other warehouse record (not an eAD) which confirm the removing vehicle and trailer as well as times and dates on site

• Original CMR of despatch

• CMR for any subsequent/successive haulier

• Ferry or EuroTunnel ticket which confirms crossing time, vehicle and trailer IDs, vessel (if appropriate) and any details of the manifested goods

• Any communications between the logistics provider/haulier and CMBC regarding each consignment in respect of the reporting to site, carriage, trailer swapping and delivery, etc

• If a seal number was provided for the load, please provide details Evidence of the alcohol having arrived at the destination warehouse could include:-

• Signed and dated CMBC delivery note

• Record of payment for the goods, to include date, amount and source bank account details to include account holder details

• Any other commercial evidence which exists to support export and delivery of the goods to the stated destination. Any evidence or information that you wish to provide should be emailed to me or sent to the address shown at the top of this letter. HMRC are also seeking to obtain this information and evidence from other parties

[4]CMBC requested a statutory review of the three decisions on 30 December 2022. On 10 February 2023, HMRC notified CMBC that the decisions were upheld on the statutory review. CMBC has not appealed the three decisions upheld on review to the tribunal. The appellant requested a further review of the decisions on 9 July 2023. On 8 September 2023 HMRC refused the appellant’s review request, stating that only CMBC had standing to request a review. The appellant then filed a notice of appeal dated 19 September 2023 in respect of the three decisions.

[5]After the filing and service of the amended strike out application, by an undated notice of appeal the appellant stated it wished to appeal against each (post-statutory review) review of the decisions dated 2 December 2022 and each “decision” not to review those decisions (“the additional decisions”). HMRC’s view is that the appellant cannot appeal in respect of the additional decisions either because no “decision” was made at all that could be the subject of an appeal, or because they are not relevant decisions for the purposes of s 13A Finance Act 1994 (“FA”). However, for the purposes of this application and the current hearing they and the appellant were content for the tribunal to proceed on the assumed basis that they are appealable decisions. Should it be found that the appellant has standing to appeal in principle, HMRC reserved the right to argue later that these “decisions” are not appealable “decisions” in any event.

[6]It was common ground that the three decisions were each a “relevant decision” for the purposes of s 16(2A) FA, although the parties disagreed to some extent on which provision of schedule 5 FA they fall in. That schedule sets out different categories of decision in respect of which a person has a right to appeal to the tribunal. Section 16(2A) FA provides as follows:

“(2A) An appeal under this section with respect to a relevant decision…shall not be entertained unless the appellant 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 the relevant decision, (b) a person in relation to whom, or on whose application, the relevant decision has been made, or (c) a person on whom the conditions, limitations, restrictions, prohibitions or other requirements to which the relevant decision relates are or are to be imposed or applied. …” (a) a person whose liability to pay any relevant duty or penalty is determined by, results from or is or will be affected by the relevant decision, (b) a person in relation to whom, or on whose application, the relevant decision has been made, or (c) a person on whom the conditions, limitations, restrictions, prohibitions or other requirements to which the relevant decision relates are or are to be imposed or applied. …”

[7]The issue is whether this appellant has standing within s 16(2A) (b) or (c). The appellant has the burden as to proof of standing (see Mather v HMRC

[2014] UKFTT 1062 (TC)

at [70] (as followed in Isle of Wight NHS Trust and ors. v HMRC

[2023] UKFTT 23 (TC)

, at [44])).

[8]It was common ground that under rule 8(2)(a) of the Rules, the tribunal must strike out the whole or part of the proceedings if it does not have jurisdiction in relation to the proceedings or that part of them. The tribunal is bound to determine jurisdiction as the Upper Tribunal (Tax & Chancery Chamber) (“UT”) held, albeit in different circumstances, in Raftopoulou v Commissioners for Revenue & Customs

[2015] UKUT 579 (TCC)

(“Raftopoulou”), [25]:

“…The strike out under consideration in this appeal was by contrast on the grounds of jurisdiction. It is clear that in relation to strike outs on the basis of lack of jurisdiction the test is a binary one; either the tribunal has jurisdiction or it does not. On appeal, the issue of law is whether the FTT made an error of law in its determination on jurisdiction. The task for this Tribunal is not simply to consider whether there is an arguable case that the FTT had jurisdiction….”

[9]This approach was followed by the UT also in Woodstream Europe Limited

[2018] UKUT 398 (TCC)

(“Woodstream”. It was stated in that case that(1) a decision on jurisdiction is a binary one, which the tribunal must determine,

(2) if the tribunal lacks jurisdiction it must strike out the proceedings (see [15]),

(3) the proper task before the tribunal is not to identify potentially non-fanciful arguments that jurisdiction might exist (see [18]), and

(4) these principles apply in relation to an application to strike out for lack of standing in relation to s 16(2A) FA. The task is to decide whether the appellant has standing or not. If it does not, then by virtue of s 16(2A) FA, the tribunal cannot not entertain the appeal and the striking out of the application must follow (see [19]).

Decisions

[10]Whilst the parties agreed that the decisions are ones which can be appealed to the tribunal, they disagreed as to their precise nature and scope and the appellant suggested that in some instances, in making them, HMRC did not act under the correct statutory powers. Therefore, I have set out details of the decisions and the statutory provisions pursuant to which HMRC state they were made and those which Majestic argues are in point.

[11]I note that, as HMRC submitted:(1) An appeal to the tribunal under s 16 FA can only be made in respect of the actual decision that has been made by HMRC not some other hypothetical decision (see Scandico Ltd v HMRC

[2017] UKUT 467 (TCC)

, at [39]). A notice of appeal cannot change either the nature of the decision actually made, or the tribunal’s jurisdiction in respect of that decision (see FS Commercial Ltd v HMRC

[2025] UKUT 00013 (TCC)

, at [78] and [79]).

(2) Whether HMRC might have made different decisions, or whether different statutory powers might have been involved in making those different decisions, or whether the decisions are ultra vires the statutory power on which they are said to have been based, irrational or otherwise unlawful is not relevant to the tribunal’s consideration of whether the appellant has standing to appeal the decisions that were actually made. The tribunal must identify the actual decisions made and then determine the appellant’s standing to appeal against them, and therefore the tribunal’s jurisdiction to hear the appeal. It is not the function of the tribunal in deciding this application to determine whether the actual decisions made were lawful or not, since that would amount to determining the substantive appeal, not the question of standing and therefore jurisdiction.

Beer registration decision

[12]The beer registration decision stated this:

“[CMBC and its premises] have been registered under Sections 41A and 47 of the Alcohol Liquor Duties Act 1979 to produce and hold beer without payment of duty. The registration number may be used only by the person in respect of the premises named above and must be used solely for the purpose of his activities as a registered producer and holder of beer. ……. The extent of your registered premises is set out below [ ] Your registration is subject to the following conditions and requirements: Only the following classes and descriptions of beer may be held on the registered premises without payment of duty. [The relevant beers were specified] You are not permitted to dispatch or sell goods under duty suspension arrangements to Majestic Global FZE. You are not permitted to make any duty paid supplies to Majestic Global FZE with the intention of, or facilitating any party, claiming duty drawback. We will review these conditions every 30 days, at which time we will consider any further information that has been provided. The conditions will remain in place until we are satisfied that goods previously dispatched to Majestic Global FZE have departed the UK and been delivered to the intended destination warehouse.”

Your registration is subject to the following conditions and requirements:

[13]The relevant statutory provisions which HMRC referred in the decision are as follows: (1) Section 41A(1) ALDA provided:

“A person registered by the Commissioners under this section may hold, on premises so registered in relation to him, any beer of a prescribed class or description - (a) which has been produced in, or imported into, the United Kingdom, and (b) which is chargeable as such with excise duty, without payment of that duty. (2) Under s 41A(5): “The Commissioners may register a person or premises under this section for such periods and subject to such conditions as they think fit.” (3) Under s 41A (6): “The Commissioners may at any time for reasonable cause - (a) revoke or vary the terms of their registration of any person or premises under this section; or (b) restrict the premises which are so registered.” (a) revoke or vary the terms of their registration of any person or premises under this section; or (b) restrict the premises which are so registered.” (4) Under s 47(1) ALDA: “A person who produces beer on any premises in the United Kingdom must be registered with the Commissioners under this section in respect of those premises; and in this Act “registered brewer” means a person registered under this section in respect of any premises.” (5) Under regulation 6(7) of the Beer Regulations it is provided that: “The Commissioners may, for reasonable cause, vary the registration of a registered brewer with respect to any registered brewery, provided that the Commissioners shall give 14 days’ notice in writing of such variation.”

[14]Majestic submitted that s 42 ALDA is also of relevance as set out below. Under this provision HMRC is empowered to impose conditions in relation to excise duty drawback on beer produced by a registered person at a registered place as follows:

“42 Drawback on exportation, removal to warehouse, shipment as stores, etc. (1)This section applies to— (a) beer which has been [produced] by a [registered brewer]; and (b)beer which has been imported, or which has been removed into the United Kingdom from the Isle of Man. (2) Subject to the provisions of this section and to such conditions as the Commissioners see fit to impose, drawback shall be allowable - …….. (b) on the exportation….by any person of [any beer to which this section applies]; or (c) on the shipment as stores by any person of any such beer.” (1)This section applies to— (a) beer which has been [produced] by a [registered brewer]; and (b)beer which has been imported, or which has been removed into the United Kingdom from the Isle of Man. (2) Subject to the provisions of this section and to such conditions as the Commissioners see fit to impose, drawback shall be allowable - (b) on the exportation….by any person of [any beer to which this section applies]; or (c) on the shipment as stores by any person of any such beer.”

[15]Majestic also submitted that regulation 13(4) of the Beer Regulations is relevant which states:

“(4) For the protection of the revenue the Commissioners may by notice in writing addressed to a registered holder restrict or prohibit the movement of beer without payment of duty from his registered premises to other registered premises or to an excise warehouse.”

[16]Majestic submitted that: (1) HMRC cannot have imposed conditions pursuant to the provisions they cite as those provisions simply give HMRC the power to revoke or vary the terms of approval or registration. It is the underlying power to impose conditions which is utilised when any decision is made to vary the relevant approval to bear such conditions.

(b) of schedule 5 which reads as follows:

“Any decision which is made under or for the purposes of section 41A or 47, or any regulations under section 49, of the Alcoholic Liquor Duties Act 1979 (regulation of the making of beer) and is a decision— (a) as to whether or not to register a person or premises under section 41A or 47; (b) as to the conditions subject to which a person is, or premises are, so registered… (e) as to whether or not to restrict or prohibit the movement of beer from one place to another without payment of duty.” (a) as to whether or not to register a person or premises under section 41A or 47; (b) as to the conditions subject to which a person is, or premises are, so registered… (e) as to whether or not to restrict or prohibit the movement of beer from one place to another without payment of duty.” (3) However, the decision must in part relate to s 42 ALDA in respect of the drawback element. The condition imposed here, in effect, is that drawback is allowable so long as the person claiming it is not Majestic. If HMRC are correct and are willing to restrict themselves to only reliance on the above provisions of ALDA, the appellant is willing to accept this. If, however, HMRC does not accept that, and it turns out this power was used, it would be a relevant decision under para 3(1)(j) of schedule 5 FA which reads as follows: “(j) any decision as to whether or not drawback is to be allowed in any case under section 42 (drawback on exportation etc.) or as to the conditions subject to which drawback is so allowed”

[17]HMRC submitted that:(1) It is clear that the decision was made on the basis that HMRC were varying the terms of HMRC’s registration of CMBC and its registered premises to hold beer without payment of excise duty. That decision was as to the conditions subject to which a person is, or premises are, so registered which falls within the terms of para 3(2B)(b) of schedule 5 FA.

(2) A decision as to whether or not to restrict or prohibit the movement of beer from one place to another without payment of duty is a different decision which most naturally falls within the provisions of para 3(2B)(e) of schedule 5 FA. HMRC did not make any such decision. No place to which any beer is to be moved is identified in either document.

(3) A decision as to whether or not drawback is to be allowed in any case under s 42 ALDA or as to the conditions subject to which drawback is so allowed is a different decision which, as the appellant set out would fall within para 3(1)(j) of schedule 5. HMRC did not make any such decision. The decision in respect of duty paid supplies was to impose conditions on the approval of CMBC’s premises such that it was not permitted to make any duty paid supplies to Majestic with the intention of, or facilitating any party, claiming duty drawback. There was no need for HMRC to make any decision under para 1(j) of schedule 5: (a) no case under s 42 ALDA would arise because absent any supply by CMBC to the appellant there could be neither any exportation of any such beer nor any shipment as stores of any such beer (s 42(2) ALDA), and (b) since no case under s 42 ALDA would arise, there were no conditions subject to which drawback was to be allowed.

(4) The relevant conditions are in effect imposed on CMBC. Under s 41A(1) ALDA the person must be registered by HMRC, and the premises must be registered in relation to that person. It is CMBC’s registration and premises registered to CMBC to which the varied terms of registration apply.

Warehouse approval decision

[18]The warehouse approval decision stated that HMRC, under s 92 of CEMA, have approved as a General Storage and Distribution Warehouse, the specified premises of CMBC, the approval is subject to revocation or variation and enables CMBC to warehouse the specified goods without payment of excise duty of specified products and the following conditions are imposed:

“You are not permitted to dispatch or sell goods under duty suspension arrangements to Majestic Global FZE. You are not permitted to make any duty paid supplies to Majestic Global FZE with the intention of, or facilitating any party, claiming duty drawback. We will review these conditions every 30 days, at which time we will consider any further information that has been provided. The conditions will remain in place until we are satisfied that goods previously dispatched to Majestic Global FZE have departed the UK and been delivered to the intended destination warehouse.”

[19]Section 92(1) CEMA states that: “the Commissioners may approve, for such periods and subject to such conditions as they think fit, places of security for the deposit, keeping and securing” of the listed goods, in some cases without payment of excise duty subject to and in accordance with warehousing regulation, and s 92(7) provides that: “the Commissioners may at any time for reasonable cause revoke or vary the terms of their approval of any warehouse under this section”.

[20]Majestic submitted that:(1) Section 93 CEMA is of relevance. This permits HMRC to make warehousing regulations which allow for conditions and restrictions on the deposit, keeping or removal of goods from a warehouse. Those regulations have been created in the Excise Warehousing Etc Regulations 1988/89 (“EWER”). Regulation 17 of EWER allows HMRC to impose conditions or restrictions on the removal of goods from an approved warehouse.

(2) HMRC assert that the warehouse approval decision was solely made under s 92 CEMA. If this is correct, and this is the basis on which HMRC will restrict itself in these proceedings, the appellant is willing to accept this. It will therefore be a relevant decision under para 2(1)(n)(ii) of schedule 5 which reads as follows: “(n) any decision for the purposes of section 92 (approval of warehouses)— (i) as to whether or not any approval is to be given to any place as a warehouse or any consent is to be given to any alteration in or addition to any warehouse; (ii) as to the conditions subject to which any approval or consent is given for the purposes of that section; or (iii) for the withdrawal of any such approval or consent;” (i) as to whether or not any approval is to be given to any place as a warehouse or any consent is to be given to any alteration in or addition to any warehouse; for the purposes of that section; or

(3) However, Majestic considers that the warehouse approval decision is made under s 93 CEMA or the regulations made by that power. If correct, and if HMRC do not commit to only relying on s 92 CEMA, it will be a relevant decision under para 2(2) of schedule 5 FA which reads as follows: “(2) Any decision which is made under or for the purposes of any regulations under any of sections 3, 31 or 93 of the Management Act (application to pipe-lines, control of movement of goods and warehousing regulations) and is- (a) a decision in relation to any goods as to whether or not they may be moved, deposited, kept, secured, treated in any manner, removed or made available to any person or as to the conditions subject to which they are moved, deposited, kept, secured, treated in any manner, removed or made available to any person;” deposited, kept, secured, treated in any manner, removed or made available to any person or as to the conditions subject to which they are moved, deposited, kept, secured, treated in any manner, removed or made available to any person;”

(4) In this context the approvals for the person and the place are split: (a) personal approvals are “Authorised Warehousekeeper” approvals granted under regulation 3 of the Authorised Warehousekeepers and Owners of Warehoused Goods Regulations 1999 (“WOWGR”) subject to conditions are applied to those approvals by s100G(4) of CEMA, but (b) the conditions in this case have all been imposed on the approval for the place, and as such, it is solely the place that is restricted. The approval in this case is a confirmation that an identified warehouse has been approved to act as a place of security It is correct that CMBC, as the occupier of the warehouse, is not permitted to act contrary to any conditions on the place of security he occupies as confirmed by regulation 14(1)(a) WOWGR. However, that same regulation confirms that CMBC as the occupier could not act contrary to any conditions imposed on the “owner approvals” of any person they store goods for (see regulation 14(1)(d) and (e)). That CMBC has to abide by the conditions does not make them solely personal to CMBC. It may be that the conditions are found to be unlawful because in imposing them HMRC purport to restrict personal actions but the powers that grant HMRC the right to impose conditions on a warehouse approval such as this are not designed for that as it is an approval of a place. HMRC argue that CMBC is the person that must comply with the condition and is therefore the person in relation to whom the relevant decision. However, the fact that CMBC must abide by a condition does not make it a condition on CMBC personally. If HMRC intended this to be a personal condition that only affected CMBC, they used the wrong powers and placed it on the wrong approval. This appeal will not be governed by intentions, but by actions and whether those actions were lawful

[21]As regards the warehouse approval decision, HMRC submitted that:(1) It is clear that the decision made was to impose conditions on CMBC’s premises and that the amended approval was made under s 92 CEMA. That decision was as to the conditions subject to which any approval or consent is given for the purposes of that section which falls within para 2(1)(n)(ii) of schedule 5 FA.

(2) A decision made under or for the purposes of any regulations made under s 93 CEMA is a different decision which, as the appellant set out, would fall within para 2(2) of schedule 5 FA. No decision was made by HMRC under, or for the purposes of, any regulations made under s 93 CEMA including regulation 17(3) of the Warehousing Regulations imposing conditions and restrictions on the removal of goods from an excise warehouse. The conditions do not refer to removal at all. Further, there was no need for HMRC to make any such decision as under the conditions imposed on the warehouse approval CMBC could neither sell any goods under duty suspension to the appellant at all, nor make any duty paid supplies to the appellant with the relevant intention. There was therefore no need to impose a condition solely on removal by reference to the Warehousing Regulations, nor would a condition based on removal have prevented such sales or supplies to the appellant as such.

(3) Likewise, a decision as to whether or not drawback is to be allowed in any case under s 42 ALDA or as to the conditions subject to which drawback is so allowed is a different decision (under para 3 of schedule 5 FA). No such decision was made for the same reasons as set out above.

(4) Majestic apparently accepts that premises approvals have been restricted, but then asserts that there is no person on which conditions have been applied. Whilst the conditions are not imposed directly on a person themselves, under s 92(8) CEMA, it is a person that must comply with a condition imposed under s 92 CEMA. That is because a warehouse itself is incapable of complying with anything. Hence it is a “person” who has the relevant right of appeal. The appellants’ points on WOWGR are not relevant and do not affect the analysis. AWRS approval decision

[22]The AWRS approval decision stated the following: “I am writing to let you know that the above approval [under the Alcohol Wholesaler Registration Scheme (AWRS)] has been amended, due to the issues outlined in the covering letter relating to goods dispatched to Majestic Global FZE. You must comply with the general conditions and restrictions of AWRS as set out in Excise Notice 2002. This can be found by searching on our website at GOV.UK. In considering your approval and in accordance with section 88C(3) of the Alcoholic Liquor Duties Act 1979, I have applied further conditions and restrictions that you must comply with in addition to the general conditions and restrictions. The conditions are: You are not permitted to make any duty paid supplies to Majestic Global FZE with the intention of, or facilitating any party, claiming duty drawback. We will review this condition every 30 days, at which time we will consider any further information that has been provided. The condition will remain in place until we are satisfied that goods previously dispatched to Majestic Global FZE have departed the UK and been delivered to the intended destination warehouse. “

[23]Section 88C provides as follows:

“Approval to carry on controlled activity (1) A UK person may not carry on a controlled activity otherwise than in accordance with an approval given by the Commissioners under this section. (2) The Commissioners may approve a person under this section to carry on a controlled activity only if they are satisfied that the person is a fit and proper person to carry on the activity. (3) The Commissioners may approve a person under this section to carry on a controlled activity for such periods and subject to such conditions or restrictions as they may think fit or as they may by or under regulations made by them prescribe. (4) The conditions or restrictions may include conditions or restrictions requiring the controlled activity to be carried on only at or from premises specified or approved by the Commissioners. (5) The Commissioners may at any time for reasonable cause revoke or vary the terms of an approval under this section. (6) In this Part “approved person” means a person approved under this section to carry on a controlled activity.”

[24]A “controlled activity” is broadly the wholesaling of duty paid alcohol. This provision is cited on the face of the approval given to CMBC in this case.

[25]There was no dispute that the AWRS approval decision is a relevant decision under para 3(1)(p) of schedule 5 FA which reads as follows: “(p) any decision for the purposes of Part 6A (wholesaling of controlled liquor) as to whether or not, and in which respects, any person is to be, or to continue to be, approved and registered or as to the conditions or restrictions subject to which any person is approved and registered.

[26]In my view it is plain that(1) in making the warehouse decision, HMRC has imposed conditions on CMBC’s general storage and distribution warehouse approval acting or purporting to act in exercise of their powers under s 92(7) CEMA and that is a relevant decision within para 2(1)(n)(ii) of schedule 5 FA,

(2) in making the beer registration decision HMRC has imposed conditions on CMBC’s producer and holder of beer registration, acting or purporting to act in exercise of their powers under ss 41A and 47 of the Alcoholic Liquor Duties Act 1979 (“ALDA”) and Regulation 6(7) of the Beer Regulations, and that is a relevant decision within para 3(2B)(b) of schedule 5 FA,

(3) in making the AWS decision HMRC has imposed conditions on CMBC’s Alcohol Wholesaler Registration Scheme approval acting or purporting to act in exercise of their power under as 88C(5) ALDA and that is a relevant decision within para 3(1)(p) of schedule 5 FA. I cannot see any basis for HMRC to be taken to have acted under or in respect of the other provisions which the appellant set out contrary to their plain stated intent and meaning of the decisions as viewed in the context of the covering letter. As set out above, any issue as to whether HMRC have acted lawfully in imposing these conditions under the relevant statutory powers is a separate question which would need to be addressed at any hearing of an appeal in respect of the substantive issue. It is not a question for determination as part of this hearing.

Submissions and decision

[27]The appellant submitted that on an objective view of the terms of the conditions and their meaning, Majestic has standing to bring an appeal against the decisions from either or both of the relevant provisions for the following main reasons:(1) Section 16(2A)(b) is not set in terms of which person(s) must comply with the effect of a decision. It is simply a question of who the decision is “about”. In this case the relevant decisions are about the two persons identified in each decision: (a) CMBC as the addressee of the approval, and (b) Majestic as the named person in relation to whom actions are restricted. There are two persons who are directly and expressly affected by the condition, limitation or restriction. CMBC as the occupier who may not dispatch or sell goods and Majestic as the named person that may not receive or buy those goods. They are equally affected because each sale or transfer has two parties, the sender at one end, the receiver at the other, as the buyer and the seller. Neither can exist without the other, and if any part of that process is prohibited at this place of security, both parties are entirely unable to act.

(2) The same analysis applies to the personal approvals. It may be CMBC’s actions that are directly restricted, but in each case they are only restricted in relation to Majestic. CMBC may continue to take all those actions for any other customer or client, but it is the interactions between Majestic and CMBC that are prohibited. Each party is equally restricted in their activities, and each party has been made a subject or target of that prohibition which affects only them and not the rest of the world at large.

(3) The only distinction as regards the warehouse approval decision is that where a restriction is added to a place, there is no person on whom conditions are applied. This is relevant to the gateway at s16(2A)(c). There are two persons indirectly restricted – the occupier who may not take action and the person whom they are prevented from acting for. The restriction on the place actually prevents both parties from pursuing what would otherwise have been lawful and permitted activity. Prior to the decisions Majestic was able to purchase from CMBC, it was able to instruct CMBC to send goods to its account in overseas warehouses. After the decision, Majestic was not able to do that any longer, and accordingly, a limitation or restriction was imposed on each of them. Majestic is as unable to act in the way it used to as CMBC is so limited. In circumstances where it is the place that is directly restricted and not the person, it becomes clear that a wider reading of the gateways is required.

(4) Although it is not directly related to this appeal, there is important context for the tribunal to bear in mind. CMBC’s approved warehouse may or may not be operated solely for their own use (there is no evidence on this), but this is the main type of warehouse used by “third party warehousekeepers” who primarily store goods for other owners. As of 3 March 2025, all personal approvals to own duty suspended goods in such a warehouse have been scrapped. HMRC no longer regulates this activity under regulation 5 or 6 WOWGR. The only approvals are the warehouse and the warehousekeeper approval. Accordingly, the only way in which HMRC will be able to restrict the activity of taxpayers causing them concern will be to impose restrictions on the warehouse that stores their goods. If it is held that taxpayers do not have a right of appeal against those restrictions, there will be an enormous gap in the proper access to justice. That cannot be what Parliament intended here.

(5) The same analysis can be applied to personal approvals as regards s 16(2A)(c). It does not restrict rights to persons that hold approvals that have conditions applied to them. There is nothing in its terms which requires only one perspective to be considered. It covers both the application of and the imposition of limitations, restrictions, prohibitions or other requirements howsoever they are applied or imposed. Apply and impose are not the same term. It does not make sense for them to both hold the same narrow definition of curtailing one’s activities only by action to approvals that have had their scope reduced. Even for the beer or AWRS approvals which are or might be personal, CMBC and Majestic are equally restricted. The conditions are imposed directly on the activities that CMBC is able to conduct using its personal approval, but the effect of the decision is still to limit CMBC and Majestic both from taking action that they could conduct before. Accordingly, even in those cases the effect of the decision is to impose limits on Majestic as the named target of the restriction. The decision was clearly ‘about’ stopping Majestic from benefiting from arrangements it previously enjoyed with CMBC.

[28]In the appellant’s view this analysis is strengthened by a review of the effect of the decisions, and the way in which HMRC itself has presented them. A fair view of the evidence filed unredacted to date demonstrates that the decisions were as much if not more about Majestic than CMBC itself. As such, Majestic must be a person in relation to whom the decision was made:(1) The conditions themselves expressly state that the conditions will remain in place until HMRC are satisfied that the goods previously dispatched to Majestic have departed the UK. The focus of HMRC’s concern and the basis for the decision is squarely on Majestic.

(2) Having restricted CMBC’s approval, HMRC took steps to ensure that Majestic could not trade with other UK suppliers. The strongest evidence can be found in the email of HMRC officer Andrew Sims of 2 November 2023 to a wholly separate supplier to Majestic. If the decisions had been made only “in relation” to CMBC, and if there was no decision to limit the activity of Majestic, they would have been free to purchase CMBC products from other sources. Instead, in this email HMRC stated as follows:

“We would consider that if you were to recommence trade with Majestic before matters have been resolved, this would bring into question your status as being Fit & Proper, as by coming to you, Majestic have directly taken steps to circumvent the restriction that was placed on CMBC, as mentioned in point 16 of Tristan Thornton’s letter of 31/08/23. We consider that if you were to recommence trading with Majestic either directly or indirectly, until the matter has been resolved you would be supporting Majestic in the circumvention of this restriction, we would have to place a condition on WOPI’s approvals to restrict any future sales to Majestic either directly or indirectly.” (3) HMRC have clearly and unequivocally demonstrated that their intention was, and remains, to prevent Majestic from being supplied. The aim of the condition is clearly to restrict supplies to Majestic so much so that HMRC will place equivalent conditions on other approvals to ensure that aim is achieved. HMRC confirmed they were prepared to restrict Majestic’s supplier World of Patria International Ltd, to prevent it from supplying Majestic or any indirect supplier to Majestic. This decision is and was always made in relation to Majestic with the intention to limit their ability to trade. (4) When the conditions were imposed, Majestic were in the process of conducting a purchase of two loads of beer from CMBC. The collection booking was requested by the haulier on 2 December 2022 and confirmed by CMBC within minutes. Preparation continued until by email of 5 December 2022 CMBC confirmed they had just been advised to hold the loads purchased by CMBC. That purchase was by that point contrary to the prohibition and Majestic was restricted from receiving the goods it had already paid for. Ultimately this had to lead to a refund to Majestic as indicated by email of 3 January 2023 at 9:37pm from CMBC to Majestic. (5) When the conditions were imposed, CMBC had Majestic registered as a collection only client who was responsible for completing the export from the UK – see the email from CMBC to Majestic on 26 January 2023at 6:45pm. This was an error as confirmed by Majestic in its reply of 27 January 2023. Accordingly, when HMRC restricted CMBC’s approvals because they were not satisfied the goods had been exported, CMBC had Majestic recorded as the exporter. HMRC have not disclosed the interaction between them and CMBC, but given what they are claiming to Majestic it is likely to reflect this. HMRC therefore restricted CMBC believing that to be the only way to require Majestic to prove they had completed their required actions. (6) By email of 15 March 2023 at 4pm CMBC’s agent described the background to HMRC’s decision as their “querying a number of movements from CMBC to Majestic”

. They describe the decision itself as HMRC have “required CMBC not to supply any more goods to [Majestic] until the matter is resolved.” The decision was clearly seen by CMBC’s agents as being made in relation to the trade between CMBC and Majestic, and was therefore made in relation to both of them. The limitation was very clearly on that trade between the two of them, affecting both of them. (7) During a presentation by HMRC to Majestic’s supplier World of Patria International Ltd on 14 July 2023 HMRC confirmed that they had imposed a temporary condition on CMBC’s approvals in order to restrict supplies to Majestic. They went so far as to describe the basis of the decision as being a significant risk of outward diversion fraud “within the Majestic Global FZE supply chain”. It was not described as a CMBC supply chain, because the decision was made in relation to Majestic. (8) By email of 4 October 2023 CMBC confirmed to Majestic that the restriction was still in place, and so CMBC was still not able to supply Majestic. This confirms the ongoing prohibition against Majestic’s purchases. (9) By letter of 6 October 2023 HMRC wrote the only proactive letter they chose to send to Majestic. This letter was written “…to outline HMRC’s position with regards to the 20 loads Majestic Global FZ-LLC, formerly Majestic Global FZE, purchased from Carlsberg Marston Brewing Company in 2021.”In making this comment they properly acknowledge that any decision made in relation to a supply is about two people, and it is a matter of perspective whether one describes them as CMBC sales or Majestic purchases. Either way, the decision is about both. Also in this letter, in order to consider lifting the condition, HMRC requested that Majestic, “provide details of onward sales of the goods in relation to the 20 transactions…”Majestic’s onward sales, which CMBC had no part of, could only be relevant if HMRC’s concerns and their decision were in relation to Majestic as well as CMBC.

[29]The appellant submitted that in summary:(1) It is clear that CMBC and HMRC both considered these decisions to have been made in relation to Majestic. Whether or not the decisions applied conditions or other limitation to CMBC, does not prevent limitations, restrictions or prohibitions being imposed on Majestic. In circumstances where two-party activities are prohibited, they will usually so afflict both parties.

(2) Decisions that directly affect a person or approval will usually affect the person whose approval it is, or the person responsible for operating the place that is approved. These persons will usually have standing to appeal and that will not be surprising. Decisions such as these which name a third party will often be as much “about” the person who controls the restricted approval as the person who they can’t take action in relation to. This will be a factual matter to consider looking at the decision itself and surrounding details. Decisions such as these which name a third party will usually affect that third party as much as they affect the person whose approval it is or who occupies the premises. This should not be surprising and there is nothing in the wording of the gateway provisions at s16(2A) to indicate Parliament intended to exclude these people from appeal rights. To the contrary, the structure of the appeal provisions within FA 1994 demonstrate an intention for other people to exercise their appeal rights.

(3) A fair view of appeal rights where a warehouse or warehousekeeper is involved will likely be crucial for proper access to justice in the alcohol industry. This is now the only way by which limits may be formally imposed by HMRC on duty suspended trade where HMRC have concerns. Whilst it is right that HMRC retain the ability to act where they have concerns, it must also be right that the named and targeted taxpayers have recourse to the tribunal to test those concerns and challenge whether they are reasonable. A warehousekeeper will have its own relationship with HMRC and it is neither reasonable to require them to jeopardise that nor to incur the financial liability of appealing on their client or customer’s behalf. Those individuals must surely have the right to bring such challenges themselves.

[30]HMRC submitted that the appellant is not a person within the terms of s 16(2A)(b) or (c). In their view, as regards s 16(2A)(b) tribunal should apply the guidance provided by the Upper Tribunal in Woodstream. In that case, the facts were as follows (see [4] to [6] and [27] of the decision):(1) Woodstream was a customer of a UK manufacturer, Grosvenor Chemicals Limited (“Grosvenor”). In November 2010 HMRC granted to Grosvenor an authorisation, subject to conditions, to receive at its premises a stated amount and type of Trade Specific Denatured Alcohol (“TSDA”) subject to it only being used to produce disinfectants. The authorisation covered receipt and use but not production.

(2) In September 2016 Woodstream applied to HMRC to vary that authorisation for a change of use from using the relevant TDSA to manufacture disinfectants to using it to manufacture agrochemicals. Woodstream explained that it had selected Grosvenor to act as its toll manufacturer. HMRC informed Woodstream that the application should be made by Grosvenor. On 28 September 2016 Grosvenor submitted a request to amend its November 2010 authorisation, stating that it was applying in conjunction with Woodstream.

(3) On 31 October 2016 HMRC refused that request. On 18 January 2017 HMRC notified Grosvenor that it had, as requested, reviewed its decision, and upheld it.

(4) On 15 February 2017 Woodstream appealed to the tribunal against HMRC’s decision to refuse Grosvenor’s request to vary its authorisation.

(5) HMRC applied to the tribunal to strike out the appeal for two reasons one of which was that Woodstream had no standing to bring the appeal before the tribunal as it was simply a customer of the person who was so entitled, namely Grosvenor.

[31]The Upper Tribunal set out at [40] that the tribunal had held that Woodstream was (arguably) “a person in relation to whom” the relevant decision had been made and took into account “the very close connection between the applications by Grosvenor and the interests of Woodstream”. However, the Upper Tribunal considered that the tribunal erred in law in its analysis, as follows at [41]:

“The wording of paragraph (b) does not refer to a person who may have an interest in a relevant decision, or in relation to whom a decision has an effect, or who is closely connected with someone who does have standing. It certainly does not extend standing, as the FTT stated at paragraph 93 of its Decision, to “a person related to the applicant”

. It refers to a person in relation to whom a relevant decision “has been made”. In this case, Woodstream was not authorised, it did not come to hold an authorisation, and it was not a user within the legislation. HMRC were scrupulous in insisting that the request to vary Grosvenor’s authorisation was sent by Grosvenor. Both the initial decision by HMRC to refuse the variation on 31 October 2016 and the decision on 18 January 2017 to uphold that refusal were decisions made and only made in relation to Grosvenor.”

[32]HMRC said that applying Woodstream, the decisions by HMRC imposing conditions on CMBC could only have been made “in relation to” CMBC. Merely being affected by the relevant decision is not enough. If it were, the statutory formulation of “is or will be affected by the relevant decision” in s16(2A)(a) FA would have been repeated in s 16(2A)(b) FA, but it quite deliberately was not.

[33]As to s 16(2A)(c) FA, HMRC submitted that, in each case the relevant condition could only have been, and was only, “imposed” or “applied” on CMBC. They could not have been “imposed” or “applied” on the appellant, since it held no relevant approval or registration that any conditions could have been attached to. Whether Majestic was “named” in any decision is of no actual consequence for the jurisdiction question, since simply naming another person in a decision imposing a condition on the approval holder, cannot amount to a condition being imposed on or applied to the named person. Merely being affected by the relevant decision is not enough, if it were the statutory formulation of “is or will be affected by the relevant decision” in s 16(2A)(a) FA would have been repeated in s 16(2A)(c) FA, but, again, it quite deliberately was not. The appellant therefore does not fall within s 16(2A)(c).

[34]HMRC made the more general points that (a) the provisions in s 16(2A) FA was added by para 203(4) of schedule 1 of the Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009/56 to mirror the provisions in s.14(2) FA94 (now in relation to restoration decisions, and albeit the provisions are not identical). Standing to request a review of a restoration decision then led to an appeal right to the Tribunal in respect of the decision (s.16(2) FA. FA was the Act that expanded the VAT Tribunals to become the VAT and Duties Tribunals ( see s.7), and (2) the conditions as to standing in s 16(2A) FA are explicit, as opposed to, for example, those in s 83 and following of the Value Added Tax Act 1994, which are not, and where there is more room for debate as to standing (for example the recipient of a supply has standing because the burden of the tax may fall on it (see Revenue and Customs Commissioners v Earlsferry Thistle Golf Club

[2014] UKUT 250 (TCC)

, at [19]). It seems to me that little can be taken from these points as regards the correct interpretation of s 16(2A) FA. The focus must be on the wording used in the provisions in s 16(2A)(b) and (c), as read in their immediate context and in light of the overall scheme of the particular legislation of which s 16(2A) forms part.

[35]HMRC further submitted that (a) even if the appellant was correct that a decision was made to restrict or prohibit the movement of beer by CMBC from one place to another and/or to impose a condition under regulation 17(3) of the Warehousing Regulations, Majestic would still have no standing to appeal that decision to the tribunal for the reasons set out above.

[36]Majestic submitted that there is a key distinction between this warehousing regime and that considered in Woodstream. The EWER and decisions made under them are designed to encompass more than just the warehouse and the warehouse operator. For example(a) regulation 2 defines the occupier of the warehouse and the owner of goods at the warehouse as separate terms as they may not be the same,

(b) under regulation 5, either the occupier of the warehouse or the owner of goods at the warehouse is entitled to apply to have conditions and restrictions varied - this is a stark contrast to the position considered in Woodstream where HMRC maintained that only Grosvenor could properly apply, and

(c) under Regulation 13, the owner of goods is granted rights of inspection against the occupier of the warehouse themselves, and (c) by schedule 3, record keeping obligations are imposable on the owner of goods.

Conclusion and direction

[37]I have concluded that, for the purposes of s 16(A2) (b) or (c), Majestic is not a person “in relation to whom…the relevant decision has been made, or “a person on whom the conditions, limitations, restrictions, prohibitions or other requirements to which the relevant decision relates are or are to be imposed or applied…”:(1) As was recognised in Woodstream, the plain, natural meaning of the relevant wording in s 16(2A)(b) is that a decision has been made in relation to a person, where that person is the subject of the decision, in the sense, in this context, that it is that person’s statutory approval or registration (or other relevant status) that is subject to and affected by the decision. It does not apply to a person in relation to whom HMRC have not exercised any statutory right to make a decision but who is consequentially affected by the decision due to the nature of the decision made. I can see no relevant distinction between the circumstances of this case and those in Woodstream which would justify a different approach being taken in this case. The fact that HMRC may have power to make decisions made under the EWER in respect of a range of persons does not alter the nature of the particular decisions made in this case as set out above.

(2) In my view, on its natural, plain meaning s 16(2A)(c) is intended similarly to capture “a person on whom” HMRC impose or apply conditions, limitations, restrictions, prohibitions or other requirements in exercise of their statutory powers to do so and not a different person who is consequentially affected by that imposition or application due to the nature of the conditions imposed. As HMRC put it, the conditions could not have been “imposed” or “applied” on Majestic, since it held no relevant approval or registration that those particular conditions could have been attached to.

(3) It is plain from the covering letter and the nature of the conditions which HMRC have sought to impose that HMRC intended that Majestic would be affected as a consequence of the decisions they have made to impose conditions on CMBC in respect of the relevant approvals and registrations they hold. However, there is nothing in the wording of these provisions to suggest that the legislature intended to give the right to appeal against a relevant decision to a person other than the person in relation to whom HMRC exercise their statutory decision making powers and/or that these provisions are concerned with HMRC’s motivation and objective in making the relevant decision. On the contrary, that the interpretation set out above is correct is, in my view, reinforced by the fact that the legislature has not included in s 16(2A)(b) or (c) similar wording to that in s 16(2A)(a) to extend their ambit specifically to a person who “or is or will be affected” by the relevant decision or by the imposition of the relevant conditions, limitations, restrictions, prohibitions or other requirements.

[38]For all the reasons set out above, I have concluded that the tribunal does not jurisdiction to hear these appeals and, pursuant to rule 8(2)(a) of the Rules IT IS DIRECTED that these appeal proceedings are hereby struck-out.

[39]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. HARRIET MORGAN TRIBUNAL JUDGE Release date: 04th SEPTEMBER 2025