Canmi Limited v The Commissioners for HMRC [2025] UKFTT 890 (TC)

[2025] UKFTT 00890 (TC)Case No TC09591
FIRST-TIER TRIBUNAL
TAX CHAMBER
Hearing Heard on: 22 and 23 January 2024Date Judgment date: 22 July 2025
Taylor House, London
Appeal reference: TC/2019/00279
EXCISE DUTY – irregular importations – regulation 12(2) of the Excise Goods (Holding, Movement and Duty Point) Regulations 2010 – whether or not the appellant was a person involved in the importation – yes – appeal dismissed.
followed by written submissions
followed by a hearing on 8 January 2025
Before
TRIBUNAL JUDGE RICHARD CHAPMAN KCMRS JANE SHILLAKER
Between
CANMI LIMITEDAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondentMr Hammad Baig of counsel. for AppellantMr Joshua Carey of counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs. for RespondentsDECISION

Introduction

[1]This is an appeal against a notice of joint and several liability to excise duty issued against Canmi Limited (“Canmi”) on 16 October 2018 (“the Notice”). The Notice related to an assessment made against Miss Miram Bumah on the same date pursuant to the Excise Goods (Holding, Movement and Duty Point) Regulations 2010 “the 2010 Regulations” respectively) in the sum of £13,972. In essence, Miss Bumah imported beer from Nigeria using a reduced rate of excise under tax code 443 (“the Reduced Rate”) pursuant to small brewery relief when (it is common ground) no such relief was applicable and so the non-reduced rate should have been applied under tax code 473 (“the Applicable Rate”). There are no penalties against Canmi. The central issue between the parties is as to the level of “involvement” required in order for Canmi to be jointly and severally liable for Miss Bumah’s irregular imports of beer. HMRC’s position is (in essence) that in such circumstances any involvement in the importation is sufficient as a matter of excise duties and that any alternative approach as a matter of customs duties is irrelevant. Canmi’s position is (in essence) that a direct representative cannot be held liable and that (even if this is wrong) knowledge of the irregularity is required. For reasons which we set out in detail below, we find that (where an importation is irregular) any involvement in the importation is sufficient.[2]A number of cases have been stayed behind the present case. These are also appeals brought by Canmi, and relate to Canmi’s other clients. Preliminary matters Amendment[3]The hearing took place on 22 and 23 January 2024 (“the 2024 Hearing”). In the course of opening submissions, Mr Baig applied to amend Canmi’s gounds of appeal to argue that HMRC were not entitled to pursue an assessment against Canmi without first exhausting their remedies against Miss Bumah as (on Canmi’s case) primary debtor.[4]We rejected that application for the following reasons, which we gave orally at the 2024 hearing and which we adopt for the purposes of this decision:(1) The overriding objective is in favour of dismissing the application to amend.(2) The application was very late in the day, being made without any real advance notice in the course of opening submissions.(3) The point had not been pleaded and would require an adjournment in order for HMRC to consider their position, to adduce any evidence, and to prepare submissions.(4) There was no explanation as to why the application to amend had not been made earlier. This was particularly significant in circumstances where the 2024 Hearing was itself the second time that the appeal had come on for hearing.[5]We also note as follows:(1) Mr Baig did not provide any draft amendment or set out its full wording.(2) Mr Baig did not make any submissions as to the legal basis for his submission that HMRC was obliged to pursue Miss Bumah before pursuing Canmi. As such, it is not clear how Mr Baig says that Canmi has a real prospect of success in this regard.(3) Miss Bumah was not a primary (or principal) debtor as regards HMRC. Canmi argues that it is not liable at all but does not, in the alternative, argue that its liability is anything other on a joint and several basis. It follows that, as regards HMRC, if Canmi is liable on a joint and several basis, it is itself a principal debtor.(4) The amendment was effectively an argument that Canmi had a legitimate expectation that HMRC would pursue Miss Bumah. However, Mr Baig did not explain how such a legitimate expectation was said to have arisen or as to why he said the Tribunal had the jurisdiction to consider it.

The scope of further submissions

[6]At the end of the 2024 Hearing, we invited further written submissions. Both HMRC and Canmi provided further written submissions, but there was a dispute as to whether Canmi had exceeded the scope of what those submissions should be. It was that dispute and the need for HMRC to be afforded a reply to any new matters raised which gave rise to the hearing on 8 January 2025 (“the 2025 Hearing”). We found that Canmi had exceeded the intended scope of the further submissions but, at the 2025 Hearing, we gave permission for Canmi to do so with one exception.[7]That exception was that Mr Baig submitted that the assessment was akin to an allegation of aiding and abetting or of conspiracy and so it should be treated as if the burden of proof and that the standard of proof should be to a criminal standard. We refused permission for Canmi to rely upon this argument for the following reasons, which we gave orally at the hearing and which we now expand upon below:(1) This was not pleaded and there has not been any application to amend the grounds for appeal.(2) Canmi has not explained why this argument was not raised earlier.(3) Canmi’s argument presupposes that HMRC are alleging dishonesty against Canmi. However, no such allegation of dishonesty is being made (and, as it is not pleaded, HMRC would not be entitled to make such an allegation without a successful application to re-amend their Statement of Case).(4) Canmi’s analogies with aiding and abetting and conspiracy do not distinguish between burden of proof and standard of proof. It is therefore unclear why the criminal standard of proof is of any assistance to Canmi given that (for the reasons which we set out below) the burden of proof is upon Canmi rather than HMRC.

Burden of proof and standard of proof

[8]Irrespective of his submissions as to aiding and abetting, Mr Baig submitted that the burden of proof was upon HMRC to establish that Canmi knew about the irregularity and that Canmi’s involvement was more than de minimis. He also said that it was for HMRC to establish this to a criminal standard. Mr Carey did not accept either of these propositions.[9]We find that the burden of proof is upon Canmi and the standard of proof is that of the balance of probabilities.[10]Section 16(6) of the Finance Act 1994 provides as follows. “(6) On an appeal under this section the burden of proof as to –(a) the matters mentioned in subsection (1)(a) and (b) of section 8 above,(b) the question whether any person has acted knowingly in using any substance or liquor in contravention of section 114(2) of the Management Act, and(c) the question whether any person had such knowledge or reasonable cause for belief as is required for liability to a penalty to arise under section 22(1) (1AA), (1AB)or (1AC) or 23(1) of the Hydrocarbon Oil Duties Act 1979 (use of fuel substitute or road fuel gas on which duty not paid), shall lie upon the Commissioners; but it shall otherwise be for the appellant to show that the grounds on which any such appeal is brought have been established.”[11]The matters set out in subsections 16(6)(a), (b) and (c) are not applicable to the circumstances of the present case. As such, the statutory position is that the burden of proof is upon Canmi.[12]These are civil proceedings, and so the starting point is that the standard of proof is that of the balance of probabilities (see Re B [2008] UKHL 35, per Lord Hoffman at [13]). Mr Baig has not relied upon any authorities to the contrary. We also repeat our point that it would be of no assistance to Canmi for the standard of proof to be that of the criminal standard given that the burden of proof is upon Canmi rather than HMRC. Findings of fact

Preliminary matters

[13]It is convenient for us to make our findings of fact at this stage. We make the following preliminary points in this regard.[14]We have taken into account the written witness statements, the oral evidence of Mr Samuel Adenigbagbe on behalf of Canmi, the oral evidence of Officer André Esponda on behalf of HMRC, the documents which have been referred to us, and the parties’ respective submissions.[15]Both Mr Adenigbagbe and Officer Esponda were helpful and credible witnesses. We have no reason to doubt the factual evidence that they each gave us. Indeed, to a large extent, there was not a great deal of factual dispute in respect of the matters upon which this case turns. We note that there was a large amount of documentation and witness evidence. However, we have restricted our findings of fact to matters which are relevant to the issues before us. In particular, we note that the assessment relates only to Miss Bumah’s importations and so (other than findings as to Canmi’s general business approach) do not make any findings as to importations from Canmi’s other clients. Findings Canmi and its services

Findings

[16]Canmi was incorporated on 26 May 2009. Its directors at the relevant times were Mr Adenigbagbe and Mrs Aisha Adenigbagbe.[17]Canmi carries on business as a custom clearance broker. It is a member of the British International Freight Association. Canmi’s clients import goods into the United Kingdom by air and sea. Canmi asks its clients for information about the goods, and then acts as its clients’ agent. It was common ground that Canmi’s agency was as what is termed a “direct representative”. This means that, for the purposes of Customs declarations, Canmi acts in its respective client’s name rather than (as an “indirect representative”) acting in Canmi’s own name. Mr Adenigbagbe’s oral evidence was that Canmi had never acted as an indirect representative for any client.[18]Canmi completes the documentation for its clients. This includes, in particular, the CHIEF (being Customs Handling of Import and Export Freight) entry importation paperwork. Canmi makes and submits a C88 form for each consignment, which includes Canmi inputting the following information: the consignor/exporter (box 1), the consignee (box 8), the declarant/representative (box 14), the goods description (box 31), the calculation of the taxes, including the type (being the tax code) and amount (box 47), and the signature and name of declarant/representative.[19]Canmi’s clients pay Canmi a fee, the amount of the shipping line charges, and the amount of any duties or excise due to HMRC. Canmi then retains the fee, and makes the relevant payments to the shipping line and HMRC as its clients’ agent.

The relevant importations

[20]By a letter dated 15 December 2014, Miss Bumah authorised Canmi to act on its behalf. The letter specifically referred to a named container, but also extended to future consignments. This is clear from the heading, “Direct Representative for HMRC Import and Export Customs Declarations” and the first line of the letter which states, “I, Miriam W Buman [sic], hereby authorise Canmi to be my direct agent from now on.” It is signed by Miss Bumah, beneath which is her correctly spelt name.[21]Canmi acted on behalf of Miss Bumah in respect of the following importations of relevance to this appeal, as shown on the C88 declarations (“the Bumah Imports”):(1) Import entry number 000284R on 1 April 2016. The consignor was Legend Logistics & Integrated, the consignee was Miss Bumah, and the name at Box 54 of the C88 form was Canmi. The goods imported included 250 boxes of Star Beer from Nigeria, in respect of which excise duty was declared in the sum of £468.69 at the Reduced Rate using tax code 443.(2) Import entry number 006537T on 25 October 2016. The consignor was Legend Logistics & Integrated, the consignee was Miss Bumah, and the name at Box 54 of the C88 form was Canmi. The goods imported included 250 boxes of Star Beer, 180 boxes of Gulder Beer, 55 boxes of Guiness Stout (Small), and 100 boxes of Guiness Stout (Big), all from Nigeria, in respect of which Excise duty was declared in the sum of £4,819.61 at the Reduced Rate using tax code 443 (£843.64 for the Star Beer, £619.33 for the Gulder Beer, £2,860.38 for the Guiness Stout (Small), and £496.26 for the Guiness Stout (Big)).(3) Import entry number 005506K on 22 November 2016. The consignor was Olina Cargo Express, the consignee was Miss Bumah, and the name at Box 54 of the C88 form was Canmi. The goods imported included 1170 boxes of Guiness Stout from Nigeria in respect of which excise duty was declared in the sum of £4,824.75 at the Reduced Rate using tax code 443.[22]Canmi does not argue that tax code 443 was correct for the Bumah Imports, does not argue against HMRC’s position that they ought to have been tax code 473, and so does not argue that small brewery relief was in fact applicable. We therefore find that the correct tax code for the Bumah Imports was tax code 473. We note at this stage that Canmi agrees with HMRC that the use of the incorrect tax code constitutes an irregularity.

HMRC’s investigations

[23]Officer Esponda’s evidence was that Canmi had been using tax code 473 in 2014 but then used tax code 443 in 2015 for various imports of beer on behalf of its clients. There is no evidence to suggest that this is incorrect and so we accept it.[24]Officer Esponda and Officer Parr (on behalf of HMRC) first visited Canmi on 4 December 2017. Officer Parr’s manuscript notebook provides as follows:
“Esponda requests files/paperwork for all alcohol imports by Winner Cash and Carry. Whilst awaiting the paperwork discuss our concerns with regard to that code. Point out that it appears that a small brewery relief code has been used by mistake. Samuel Adenigbagbe one of the directors is person seen. Photocopies of four import [ineligible] for Winner Cash and Carry provided.”
[25]Officer Esponda’s evidence is that he advised Mr Adenigbagbe not to use code 443 at the meeting on 4 December 2017. Mr Adenigbagbe disputes this, saying that he was not advised not to use code 443 but instead that HMRC was investigating the matter, and for that reason he instructed his staff that there may be an issue of the use of 443 and that 473 should be used. Given the dispute of oral evidence, the passage of time since the meeting, and the fact that Officer Parr’s notebook entry was contemporaneous, we treat that notebook entry as the definitive record of what was said. Whilst this means that Officer Esponda did not advise in express terms that Canmi was not to use code 443, it is clear that he was saying that HMRC’s view was that code 443 was the wrong code rather than merely the fact that it was being investigated.[26]In any event, Canmi continued to use tax code 443 because, Mr Adenigbagbe said, his client had come back to him and categorically said that tax code 443 applied. For example, Canmi acted in respect of an import on 6 December 2017 including Guiness Stout which was declared using tax code 443. The consignor was Fargo Le Meridian Ltd and the consignee was Reuben Naniwono of RAAR Services Limited.[27]On 30 January 2018, Officer Esponda chased documents which he had asked for in respect of Winner Cash and Carry’s imports for the past four years. He said that, “On 29 January 2018, you phoned me back stating you cannot and will not carry out this request even though you have been quoting the incorrect import tax on many of your clients’ imports.”[28]Further correspondence passed between HMRC and Canmi. Officer Esponda (and two other officers) also conducted a further visit to Canmi on 26 April 2018. The visit report includes the following (with obvious typographical errors corrected):
“SA invites us to a meeting room where I explain we need all the information regarding the 80 entry numbers I had sent Canmi, plus any other alcohol imports from 2018 so I could determine if his customers are paying the correct amount of duty and if SA is entering the correct excise duty code and the duty code for small brewery relief. I repeat myself four more times and advise SA that if we do not get all the import documents today, he will need to provide the rest. ... AE – Why do you use tax type 443? SA – My customers tell me to. ... I explain to SA that he should be using the correct tax code for imports and not to just put a code down just because his customers ask him to because this is incorrect and all his customers appear to be paying less duty on their excise goods than they should be paying. ... SA advises that I should tell his customers myself, because if he does it, his customers will end up using a different freight forwarder. I advise SA that I explained to him in December that he is using the incorrect duty codes on his beers imports and that none of the beers are entitled to be claimed under small brewery relief, I also found out that he knows what each code/tax type is and advised him that he could be liable for penalty. SA advises me that his customers should know what codes they are using.”

AE – Why do you use tax type 443?

[29]HMRC reached the view that various importers had underpaid duty by declaring goods to tax code 443 rather than tax code 473. Those importers included Miss Bumah.[30]On 4 October 2018, Officer Esponda chased Canmi to provide copies of his clients’ instructions to use small brewery relief. He said that, “You know this code is the incorrect import duty code, as I have discussed this with you on more than one occasion.” Mr Adenigbagbe responded on the same day with, “No I do not know but going forward I will advise the customers that are insisting on the small relief to contact you directly.”[31]Canmi continued to use tax code 443 for imports of beer on behalf of its clients until October 2018.

Canmi’s knowledge

[32]Mr Adenigbagbe’s oral evidence was that he knew in 2014 that there was a difference between tax code 443 (being the Reduced Rate) and tax code 473 (being the Applicable Rate). However, he said that he was entirely reliant upon information from his client in choosing the tax code. Canmi did not provide its clients with advice as to what should be included on any declarations to HMRC. Mr Adenigbagbe consulted BIFA on the matter, who told him that, as Canmi was acting as a direct representative, he should be clear about what his authority and instructions were.[33]The Reduced Rate was used because that was what his client had said. HMRC told Canmi (at the latest) by email on 4 October 2018 that this was the wrong code, in response to which Mr Adenigbagbe said in an email, also on 4 October 2018, that “going forward I will advise the customers that are insisting on the small relief to contact you directly”.[34]It was put to Mr Adenigbagbe that he knew his clients’ imports did not qualify for the small brewery relief. In particular, Mr Carey put to him that he did not ask for a small brewery certificate, that he had not retained any instructions, and that he did not do any checks. Mr Adenigbagbe said that he did not know the tax codes were incorrect and that he was acting on the basis of what he had been told. We find that Mr Adenigbagbe (and so Canmi, given that Mr Adenigbagbe was the director dealing with the completion and the submission of the C88 forms) did not know that the tax codes for the Bumah Imports were incorrect. This is for the following reasons. There is no direct evidence that he knew the tax codes for the Bumah Imports was incorrect. Further, much of the evidence relied upon by HMRC for submitting that Mr Adenigbagbe knew the codes were incorrect relate to his conduct and approach to the tax codes after the first meeting on 4 December 2017. This post-dates the Bumah Imports. In addition, although we have not seen any written instructions to Canmi from Miss Bumah, there is no evidence to contradict Mr Adenigbagbe’s evidence that, at the time of the Bumah Imports, he was instructed by his clients (including Miss Bumah) as to the tax code to use.[35]It was also put to Mr Adenigbagbe that he “closed his eyes” to whether the tax codes were incorrect. Mr Adenigbagbe refuted this. It is not clear whether by “closed his eyes” Mr Carey was suggesting that Mr Adenigbagbe actively chose to ignore suspicions that the tax codes were incorrect or alternatively that he (and Canmi) simply failed to consider the matter. There is no evidence that Adenigbagbe suspected that the tax codes were incorrect and so we do not find that there were any suspicions for him actively to ignore. We do find, however, that he (and Canmi) did not consider whether or not the tax codes were incorrect. This is because Mr Adenigbagbe’s own evidence (which, as set out above, we accept) is that he simply followed Miss Bumah’s instructions. Indeed, Canmi’s original notice of appeal states that “Canmi Ltd does not question whether the customer was entitled to the relief; Canmi Ltd may enter goods under various customs procedures for customers but does not query whether their instructions are correct.” It must be said, however, that it is not clear that such a finding has any significance on either party’s primary case.

The Notice and the appeal

[36]On 16 October 2018, HMRC issued Miss Bumah with an assessment to excise duty in the sum of £13,972 in respect of the Bumah Imports. On the same date, HMRC issued the Notice to Canmi in the same sum.[37]Canmi requested a review. By a letter dated 14 December 2018, HMRC upheld the decision to issue the Notice. Canmi appealed to the Tribunal against the Notice by a notice of appeal dated 4 January 2019.

Issues

[38]The following issues arise for determination in the light of the parties’ submissions:(1) The relevance (or otherwise) of the following legislation: (a) Articles 7 and 8 of Council Directive 2008/118/EC (“the Excise Directive”). (b) Article 7(1)(d) of Council Directive 2020/262 (“the Recast Directive”). (c) The Finance Act 1994, section 12. (d) Regulations 5, 6 and 12 of the 2010 Regulations. (e) The Community Customs Code (Council Regulation (EEC) No 2913/92) and the Union Customs Code (Regulation (EU) No 952/2013). (f) Article 199 of Commission Regulation (EEC) No 2454/93.(2) Whether knowledge of the irregularity is required for liability: (a) By virtue of Article 79 of the Union Customs Code. (b) On a proper construction of Regulation 12.(3) Whether Canmi was involved in the importation: (a) Canmi’s involvement (including, to the extent relevant, whether it was more than de minimis). (b) Whether Canmi was the declarant. (c) Whether a direct representative is “involved” when acting on behalf of its client. (d) Whether as a matter of agency law an agent is “involved” when acting on behalf of its principal.[39]For completeness, we note that Mr Baig referred to section 21 of the Taxation (Cross-Border Trade) Act 2018. However, we have not included this in our consideration of the extent to which legislation referred to is applicable to the liability under the Notice. Mr Baig accepted within his submissions that this Act postdates the Bumah Imports and so is not applicable. He only relied on it in written submissions on the basis that, as he put it, the Tribunal may find it useful, but did not rely upon it further during oral submissions. Given the acceptance that it is not applicable in the present appeal, we do not consider it further. The relevant legal framework The Excise Directive

The relevant legal framework

[40]The parties agree that Articles 7 and 8 of the Excise Directive are relevant. They provide as follows. “Article 7 1. Excise duty shall become chargeable at the time, and in the Member State, of release for consumption. 2. For the purposes of this Directive, ‘release for consumption’ shall mean any of the following: … (d) the importation of excise goods, including irregular importation, unless the excise goods are placed, immediately upon importation, under a duty suspension arrangement. ... Article 8 1. The person liable to pay the excise duty that has become chargeable shall be: … (d) in relation to the importation of excise goods as referred to in Article 7(2)(d): the person who declares the excise goods or on whose behalf they are declared upon importation and, in the case of irregular importation, any other person involved in the importation. 2. Where several persons are liable for payment of one excise duty debt, they shall be jointly and severally liable for such debt.” Article 8

The Recast Directive:

[41]Article 7(1)(d) of the Recast Directive provides as follows:
“Article 7 Person liable to pay excise duty ... (1) The person liable to pay the excise duty that has become chargeable shall be: ... (d) in relation to the importation or irregular entry of excise goods as referred to in point (d) of Article 6(3): the declarant as defined in point (15) of Article 5 of Regulation (EU) No 952/2013 (the ‘declarant’) or any other person as referred to in Article 77(3) of that Regulation and, in the case of irregular entry, any other person involved in that irregular entry. 2. Where several persons are liable for payment of the same excise duty, they shall be jointly and severally liable for such debt.”
Person liable to pay excise duty

Submissions

[42]Mr Baig submitted that the Recast Directive is applicable to the present case because it clarifies what was meant by Article 8(1)(d) of the Excise Directive. He notes that paragraphs 1 and 7 of the preamble to the Recast Directive states as follows:
“(1) Council Directive 2008/118/EC has been substantially amended several times. Since further amendments are to be made, that Directive should be recast in the interests of clarity. ... (7) Since it remains necessary for the proper functioning of the internal market that the concept, and conditions for chargeability, of excise duty be the same in all Member States, it is necessary to make clear at Union level when excise goods are released for consumption and who is liable to pay the excise duty.”
[43]Mr Baig also relied upon Amministrazione Delle Finanze v Salumi [1981] 1 CMLR 1(“Salumi”) for the proposition that regard can be had to the preamble in directives. In particular, he referred us to [8] to [12] as follows:
“[8] Article 177 of the Treaty provides that the Court of Justice shall have jurisdiction to give preliminary rulings, in particular, concerning the interpretation of the Treaty and of the acts of the institutions. The purpose of that jurisdiction is to ensure the uniform interpretation and application of Community law, and in particular the provisions which have direct effect, through the national courts. [9] The interpretation which. in the exercise of the jurisdiction conferred on it by Article 177 of the EEC Treaty. the Court of Justice gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may. and must. be applied by the courts even to legal relationship arising and established before the judgment ruling on the request for interpretation. provided that in other respects the conditions enabling an action relating to the application of that rule to be brought before the courts having jurisdiction are satisfied. [10] As the Court recognised in its judgment of 8 April 1976 in Case 43/15 Defrenne v Sabena it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, be moved to restrict for any person concerned the opportunity of relying upon the provision as thus interpreted with a view to calling in question those legal relationships. [11] Such a restriction may, however, be allowed only in the actual judgment ruling on the interpretation sought. The fundamental need for a general and uniform application of Community law implies that it is for the Court of Justice alone to decide upon the temporal restrictions to be placed on the interpretation which it lays down. [12] Finally, having regard to the clarification requested by the national court, it should be noted that a rule of Community law so interpreted takes effect in accordance with the interpretation given to it as from its entry into force without any necessity for making any distinction according to whether the provisions in question impose charges or confer benefits upon those concerned or whether the amounts involved are ones which the national administration ought to have but has not levied-in breach of Community law-or ones which they have levied in breach of that law.”
[44]Mr Carey submitted that the Recast Directive does not apply to the present case as it did not come into force until after the importations in question and after the Notice was issued. He noted that Salumi was dealing with a situation where an interpretation by the Court of Justice was treated as having retrospective effect (see Salumi at [4] and [5]).

Discussion

[45]We find that the Recast Directive does not have retroactive effect and so it cannot be relied upon to construe the Excise Directive or at all. Crucially, Article 56 of the Recast Directive provides that the Excise Directive is repealed with effect from 13 February 2023 and Article 57 provides that Article 7 (amongst others) shall apply from 13 February 2023. Mr Baig has not provided us with any authority to the effect that in those circumstances a directive that is not in force at the relevant time (or, given that the Recast Directive is dated 19 December 2019, not even made) can be an aid to construction of a previous directive. This is particularly stark given that Mr Baig refers in his skeleton argument to Article 7(1)(d) of the Recast Directive being “a substantial change from Article 8(1)(d)” of the Excise Directive.[46]Salumi is of no assistance, because its effect is that a judicial interpretation of Community law is treated as stating the law before the interpretation was given. This is different to saying that one directive has retrospective effect when construing a previous directive. Indeed, it is of note that the Court of Justice in Salumi sets out when the interpretation takes effect from; namely, that “a rule of Community law so interpreted takes effect in accordance with the interpretation given to it as from its entry into force ...” In the present case, therefore, the interpretation of Article 7(1)(d) and of paragraphs 1 and 7 of the preamble can only take effect from the entry into force of the Recast Directive. Paragraphs 1 and 7 do not even purport to have retrospective effect. Paragraph 1 expressly refers to further amendments being and so it is not simply a restatement of the Excise Directive. Paragraph 7 says nothing as to retrospectivity as its stated intention of clarity does not state that the Excise Directive is to be construed in accordance with the Recast Directive. We have not been referred to any other provision of the Recast Directive which is said to give Article 7(1)(d) retrospective effect.[47]In any event, we note that Canmi seeks to rely upon Article 7(1)(d) because of the express reference to the Union Customs Code. However, it is common ground that the present case relates to irregular entries.

The 2010 Regulations

(d) The 2010 Regulations

[48]The parties agree that Regulations 5, 6, and 12 of the 2010 Regulations (in their form at the time of the Bumah Imports) are relevant. They provide as follows:
“5. Subject to regulation 7(2), there is an excise duty point at the time when excise goods are released for consumption in the United Kingdom. 6. (1) Excise goods are released for consumption in the United Kingdom at the time when the goods – (a) leave a duty suspension arrangement; (b) are held outside a duty suspension arrangement and UK excise duty on those goods has not been paid, relieved, remitted or deferred under a duty deferment arrangement; (c) are produced outside a duty suspension arrangement; or (d) are charged with duty at importation unless they are placed, immediately upon importation, under a duty suspension arrangement. (2) In paragraph (1)(d) “importation” means - (a) the entry into the United Kingdom of excise goods other than EU excise goods, unless the goods upon their entry into the United Kingdom are immediately placed under a customs suspensive procedure or arrangement; or (b) the release in the United Kingdom of excise goods from a customs suspensive procedure or arrangement. (3) In paragraph (2)(a) “EU excise goods” means excise goods imported into the United Kingdom from another Member State which have been produced or are in free circulation in the EU at that importation. ... 12. (1) The person liable to pay the duty when excise goods are released for consumption by virtue of regulation 6(1)(d) (importation of excise goods that have not been produced or are not in free circulation in the EU) is the person who declares the excise goods or on whose behalf they are declared upon importation. (2) In the case of an irregular importation any person involved in the importation is liable to pay the duty. (3) Where more than one person is involved in the irregular importation, each person is jointly and severally liable to pay the duty.”
[49]We note that HMRC based the assessment of Ms Bumah and the Notice to Canmi upon alleged liability under Regulation (6)(1)(d).

The Finance Act 2014

[50]The parties disagree as to whether section 12 of the Finance Act 2014 (“Section 12”) applies to direct representatives.[51]The relevant parts of Section 12 as in force at the relevant time provide as follows (for which purpose we note that we do not include the relevant time limits as these are not in issue in the present appeal):
“12 – Assessments to excise duty (1) Subject to subsection (4) below, where it appears to the Commissioners— (a) that any person is a person from whom any amount has become due in respect of any duty of excise; and (b) that there has been a default falling within subsection (2) below the Commissioners may assess the amount of duty due from that person to the best of their judgment and notify that amount to that person or his representative. (1A) Subject to subsection (4) below, where it appears to the Commissioners- (a) that any person is a person from whom any amount has become due in respect of any duty of excise; and (b) that the amount due can be ascertained by the Commissioners, the Commissioners may assess the amount of duty due from that person and notify that amount to that person or his representative. (2) The defaults falling within this subsection are— ... (b) any omission from or inaccuracy in any returns, accounts, books, records or other documents which any person is required or directed by or under any enactment to make, keep, preserve or produce; ... (3) Where an amount has been assessed as due from any person and notified in accordance with this section, it shall, subject to any appeal under section 16 below, be deemed to be an amount of the duty in question due from that person and may be recovered accordingly, unless, or except to the extent that, the assessment has subsequently been withdrawn or reduced. ... (8) In this section “representative”, in relation to a person appearing to the Commissioners to be a person from whom any amount has become due in respect of any duty of excise, means his personal representative or trustee in bankruptcy or interim or permanent trustee, any receiver or liquidator appointed in relation to that person or any of his property or any other person acting in a representative capacity in relation to that person.”

Submissions

[52]Mr Baig submits that Section 12 is of no application to direct representatives. He says that this does not envisage anybody who acts purely in the capacity of a representative as being liable.[53]Mr Carey does not accept that Section 12 is limited in this way.

Discussion

[54]We find that Section 12 is capable of applying to direct representatives. The reference to “representative” in section 12(8) is not relevant in this regard, as this is simply denoting who can be notified of an assessment upon a person appearing to HMRC to be a person from whom any amount has become due in respect of any duty of excise (namely, the person himself or herself or that person’s representative). Here, a direct representative is itself the person who appears to HMRC to be a person from whom any amount has become due in respect of any duty of excise. Subject to Canmi’s liability being made out, Section 12 applies to Canmi because it is itself a principal debtor pursuant to the joint and several liability provisions of Regulation 12 of the 2010 Regulations (“Regulation 12”). It is right that Section 12 does not enable HMRC to enforce a principal’s liability against a representative (whether direct or indirect) simply by virtue of being a representative of “a person from whom any amount has become due in respect of any duty of excise”, but that is not what HMRC is seeking to do. Canmi is (if HMRC are right, which we consider further below) to be assessed under Section 12 as itself being “a person from whom any amount has become due in respect of any duty of excise.” To put this another way, if Canmi was involved in the importation for the purposes of Regulation 12(2), it is Canmi’s own liability under Regulation 12(2) that is being assessed pursuant to Section 12. The Community Customs Code and Union Customs Code Submissions

The Community Customs Code and Union Customs Code

[55]Mr Baig submits that the Community Customs Code is applicable to Canmi’s appeal to the extent that it relates to the period before it was repealed on 1 May 2016 (and so in respect of the first of the Bumah Imports) and thereafter the Union Customs Code.[56]As regards the Community Customs Code, Mr Baig relies upon the following paragraphs of Articles 4, 5, and 64, the relevant parts of which provide as follows:
“Article 4 For the purposes of this Code, the following definitions shall apply: ... (18) ‘Declarant’ means the person making the customs declaration in his own name or the person in whose name a customs declaration is made. ... Article 5 1. Under the conditions set out in Article 64 (2) and subject to the provisions adopted within the framework of Article 243 (2) (b), any person may appoint a representative in his dealings with the customs authorities to perform the acts and formalities laid down by customs rules. 2. Such representation may be: - direct, in which case the representative shall act in the name of and on behalf of another person, or - indirect, in which case the representatives shall act in his own name but on behalf of another person. A Member State may restrict the right to make customs declarations: - by direct representation, or - by indirect representation, so that the representative must be a customs agent carrying on his business in that country's territory. 3. Save in the cases referred to in Article 64 (2) (b) and (3), a representative must be established within the Community. 4. A representative must state that he is acting on behalf of the person represented, specify whether the representation is direct or indirect and be empowered to act as a representative. A person who fails to state that he is acting in the name of or on behalf of another person or who states that he is acting in the name of or on behalf of another person without being empowered to do so shall be deemed to be acting in his own name and on his own behalf. 5. The customs authorities may require any person stating that he is acting in the name of or on behalf of another person to produce evidence of his powers to act as a representative. ... Article 64 1. Subject to Article 5, a customs declaration may be made by any person who is able to present the goods in question or to have them presented to the competent customs authority, together with all the documents which are required to be produced for the application of the rules governing the customs procedure in respect of which the goods were declared. 2. However, (a) where acceptance of a customs declaration imposes particular obligations on a specific person, the declaration must be made by that person or on his behalf; (b) the declarant must be established in the Community. However, the condition regarding establishment in the Community shall not apply to persons who: - make a declaration for transit or temporary importation; - declare goods on an occasional basis, provided that the customs authorities consider this to be justified. 3. Paragraph 2 (b) shall not preclude the application by the Member States of bilateral agreements concluded with third countries, or customary practices having similar effect, under which nationals of such countries may make customs declarations in the territory of the Member States in question, subject to reciprocity.”
For the purposes of this Code, the following definitions shall apply: Article 5 A Member State may restrict the right to make customs declarations: Article 64

However, the condition regarding establishment in the Community shall not apply to persons who:

[57]As regards the Union Customs Code, Mr Baig relies upon the following paragraphs of Articles 15, 18, 19, 51, and 77, the relevant parts of which provide as follows:
“Article 15 Provision of information to the customs authorities 1. Any person directly or indirectly involved in the accomplishment of customs formalities or in customs controls shall, at the request of the customs authorities and within any time-limit specified, provide those authorities with all the requisite documents and information, in an appropriate form, and all the assistance necessary for the completion of those formalities or controls. 2. The lodging of a customs declaration, temporary storage declaration, entry summary declaration, exit summary declaration, re-export declaration or re-export notification by a person to the customs authorities, or the submission of an application for an authorisation or any other decision, shall render the person concerned responsible for all of the following: (a) the accuracy and completeness of the information given in the declaration, notification or application; (b) the authenticity, accuracy and validity of any document supporting the declaration, notification or application; (c) where applicable, compliance with all of the obligations relating to the placing of the goods in question under the customs procedure concerned, or to the conduct of the authorised operations. The first subparagraph shall also apply to the provision of any information in any other form required by, or given to, the customs authorities. Where the declaration or notification is lodged, the application is submitted, or information is provided, by a customs representative of the person concerned, as referred to in Article 18, that customs representative shall also be bound by the obligations set out in the first subparagraph of this paragraph. ... Article 18 Customs representative 1. Any person may appoint a customs representative. Such representation may be either direct, in which case the customs representative shall act in the name of and on behalf of another person, or indirect, in which case the customs representative shall act in his or her own name but on behalf of another person. 2. A customs representative shall be established within the customs territory of the Union. Except where otherwise provided, that requirement shall be waived where the customs representative acts on behalf of persons who are not required to be established within the customs territory of the Union. 3. Member States may determine, in accordance with Union law, the conditions under which a customs representative may provide services in the Member State where he or she is established. However, without prejudice to the application of less stringent criteria by the Member State concerned, a customs representative who complies with the criteria laid down in points (a) to (d) of Article 39 shall be entitled to provide such services in a Member State other than the one where he or she is established. 4. Member States may apply the conditions determined in accordance with the first sentence of paragraph 3 to customs representatives not established within the customs territory of the Union. Article 19 Empowerment 1. When dealing with the customs authorities, a customs representative shall state that he or she is acting on behalf of the person represented and shall specify whether the representation is direct or indirect. Persons who fail to state that they are acting as a customs representative or who state that they are acting as a customs representative without being empowered to do so shall be deemed to be acting in their own name and on their own behalf. 2. The customs authorities may require persons stating that they are acting as a customs representative to provide evidence of their empowerment by the person represented. In specific cases, the customs authorities shall not require such evidence to be provided. 3. The customs authorities shall not require a person acting as a customs representative, carrying out acts and formalities on a regular basis, to produce on every occasion evidence of empowerment, provided that such person is in a position to produce such evidence on request by the customs authorities. Article 51 Keeping of documents and other information 1. The person concerned shall, for the purposes of customs controls, keep the documents and information referred to in Article 15(1) for at least three years, by any means accessible by and acceptable to the customs authorities. In the case of goods released for free circulation in circumstances other than those referred to in the third subparagraph, or goods declared for export, that period shall run from the end of the year in which the customs declarations for release for free circulation or export are accepted. ... Customs debt on import Article 77 Release for free circulation and temporary admission 1. A customs debt on import shall be incurred through the placing of non-Union goods liable to import duty under either of the following customs procedures: (a) release for free circulation, including under the end-use provisions; (b) temporary admission with partial relief from import duty. 2. A customs debt shall be incurred at the time of acceptance of the customs declaration. 3. The declarant shall be the debtor. In the event of indirect representation, the person on whose behalf the customs declaration is made shall also be a debtor. Where a customs declaration in respect of one of the procedures referred to in paragraph 1 is drawn up on the basis of information which leads to all or part of the import duty not being collected, the person who provided the information required to draw up the declaration and who knew, or who ought reasonably to have known, that such information was false shall also be a debtor. ...”
Provision of information to the customs authorities Article 18 Customs representative Article 19 Empowerment Article 51 Keeping of documents and other information Customs debt on import Article 77

Release for free circulation and temporary admission

[58]Mr Baig submits that the Community Customs Code and Union Customs Code as set out above establish the distinction between direct representatives and indirect representatives and explains the role and obligations of a direct representative. Mr Baig further submits that the definition of a direct representative ought to be read into the Excise Regulations. He relies upon the CJEU’s judgment in Dansk Transport og Logistik v Skatteministeriet (CaseC-230/08) (“Dansk”)at [84] as follows:
“[84] In those circumstances, given the similarities between customs duties and excise duties in that they arise from the importation of goods into the Community and their subsequent distribution through the economic channels of the Member States, and in order to ensure a coherent interpretation of the Community legislation at issue, it must be found that excise duty is extinguished in the same way as customs duty.”
[59]Mr Baig submits that HMRC are taking a duplicitous approach by objecting to the relevance of customs legislation and yet, he says, relying on it for their own purposes. He included within this HMRC’s reliance upon Hartleb v HMRC [2024] UKUT 00034 (TCC) (“Hartleb”).[60]Mr Carey submits that the Community Customs Code and the Union Customs Code are not relevant as they relate to customs debts whereas the Notice was in respect of excise duty. “Customs debt” is defined in Article 5(18) of the Union Customs Code as “the obligation on a person to pay the amount of import or export duty which applies to specific goods under the customs legislation in force.” Mr Carey did not accept that there was any duplicity in HMRC’s approach, and noted that Hartleb is an excise duties case and does not refer to the Community Customs Code or the Union Customs Code.

Discussion

[61]We find that the Community Customs Code and the Union Customs Code do not have any application to the Notice or to liability under Regulation 12. This is for the following reasons.[62]First, Mr Carey is correct to say that the Notice relates to excise duty whereas the Community Customs Code and the Union Customs Code are dealing with customs debts. As he notes, customs debts relate to import or export duty and not excise duty.[63]Secondly, Dansk is not authority for the proposition that definition of a direct representative should be read into the Excise Regulations. Dansk was dealing with a situation in which there was no express provision in the Excise Regulations as to the extinction of excise duty and so the Excise Regulations were interpreted in the same way as customs duty to ensure coherent interpretation of the Community legislation at issue. The CJEU stated as follows at [83]:
“[83] Finally, as regards the question whether the extinction of the customs debt under point (d) of the first paragraph of Article 233 of the Customs Code affects whether the excise duty incurred on those goods is extinguished, the Excise Duty Directive does not contain any express provision concerning the extinction of the excise duty in the case of unlawful importation of goods.”
[64]In the present case, Article 8 of the Excise Directive expressly deals with the question of who is liable. For regular importations, this is the person who declares the excise goods or on whose behalf they are declared. Someone declaring in their own name (whether the importer themselves or an indirect representative) would be liable in this regard, as would be the importer where a direct representative declares the excise goods on behalf of that importer. It follows that a direct representative would not be liable in respect of a regular importation. For irregular importations, any other person involved is liable.[65]Thirdly, it is not clear what Mr Baig is submitting should actually be read into Article 8. In respect of regular importations, a distinction is already made between a situation where a person declares the excise goods himself or herself and the situation where the excise goods are declared on behalf of another person and so there is no need to imply any provisions about direct or indirect representatives (even assuming the ability to do so). In respect of irregular importations, “any other person involved in the irregular importation” must mean people other than those liable for a regular importation. This expressly overrides the distinction between a direct representative and an indirect representative; given that this distinction is made for a regular importation, there would be no purpose for “any other person” if this distinction is read back in for an irregular importation as well.[66]We note that Mr Baig also submitted on behalf of Canmi that a direct representative is not capable of being “involved” for the purposes of Regulation 12. We deal with this separately below as this is an issue which relates to the effect of Canmi’s agency on behalf of Miss Bumah for the purposes of the 2010 Regulations rather than the applicability of the Community Customs Code or the Union Customs Code.[67]Fourthly, we do not accept that there is any duplicity in HMRC’s submissions as to the non-application of the Community Customs Code or the Union Customs Code. The issue is not whether the codes have any application at all to imports but instead whether they have any relevance to liability for the purposes of Regulation 12. HMRC have been clear throughout that they do not accept the relevance of these codes for the purposes of liability to excise duty, but have engaged with Canmi’s arguments in the alternative. We also agree with Mr Carey that Hartleb related to excise duties and does not deal with the Community Customs Code or the Union Customs Code. Article 199 of Regulation 2454/93 Submissions

Article 199 of Regulation 2454/93

[68]Mr Baig relied upon Article 199 of Regulation 2454/93, which implemented the Community Customs Code. It provides as follows:
“Article 199 Without prejudice to the possible application of penal provisions, the lodging with a customs office of a declaration signed by the declarant or his representative shall render him responsible under the provisions in force for: - the accuracy of the information given in the declaration, - the authenticity of the documents attached, and - compliance with all the obligations relating to the entry of the goods in question under the procedure concerned.”
[69]Mr Baig submitted that this, to use the phrase in his skeleton argument, “sheds light on the accuracy of the declaration and who is responsible for inaccurate declarations”.[70]Mr Carey submitted that Article 199 is of no application in the present case for the same reasons as in respect of the Community Customs Code. He further submits that, if Article 199 does apply, it renders a direct representative responsible for inaccuracies.

Discussion

[71]We find that Article 199 is of no application to liability under Regulation 12. This is for the same reasons that the Community Customs Code and the Union Customs Code are not applicable, and we repeat paragraphs 55 to 67 above in that regard.[72]We do not agree with Mr Carey that Article 199 would on its own render Canmi liable for inaccuracies if it did apply. Although not without ambiguity, we find that the “him” in, “a declaration signed by the declarant or his representative shall render him responsible” (our italics) is referring to the declarant. This is because the representative is referred to as his representative, meaning the declarant’s representative. It would therefore be inconsistent for his to mean the declarant but for him to mean the representative. In any event, this only goes to responsibility for the inaccuracy for the purposes of Article 199. As set out above, Article 199 does not apply to the Excise Directive and, in any event, would not preclude wider liability being imposed by Articles 7 and 8 of the Excise Directive (or Regulations 6(1)(d) and 12 of the 2010 Regulations which implement them).[73]For completeness, we note that Article 199 was repealed with effect from 30 April 2016, and so even if applicable it would only relate to the first of the Bumah Imports. Knowledge Article 79 of the Union Customs Code Submissions

Knowledge

[74]Mr Baig submitted that the following paragraphs of Article 7 of the Union Customs Code are of relevance:
“Article 79 Customs debt incurred through non-compliance 1. For goods liable to import duty, a customs debt on import shall be incurred through non-compliance with any of the following: (a) one of the obligations laid down in the customs legislation concerning the introduction of non-Union goods into the customs territory of the Union, their removal from customs supervision, or the movement, processing, storage, temporary storage, temporary admission or disposal of such goods within that territory; ... 3. In cases referred to under points (a) and (b) of paragraph 1, the debtor shall be any of the following: (a) any person who was required to fulfil the obligations concerned; (b) any person who was aware or should reasonably have been aware that an obligation under the customs legislation was not fulfilled and who acted on behalf of the person who was obliged to fulfil the obligation, or who participated in the act which led to the non-fulfilment of the obligation; (c) any person who acquired or held the goods in question and who was aware or should reasonably have been aware at the time of acquiring or receiving the goods that an obligation under the customs legislation was not fulfilled”
.

Customs debt incurred through non-compliance

[75]Mr Baig did not make any submissions as to why Article 79 applies to liability under the Excise Directive or the 2010 Regulations. We take it that he treated this as an extension of his wider submission that the provisions of the Community Customs Code and the Union Customs Code are applicable to excise duty.[76]Mr Carey submits that Article 79 has no application for the same reasons as for the other provisions of the Union Customs Code.

Discussion

[77]We find that Article 79 does not have any direct relevance to the liability under the 2010 Regulations for the purposes of the Notice. We repeat and adopt our findings in respect of the Community Customs Code and the Union Customs Code above, to the effect that they are not of direct application to assessments for excise duty. Indeed, this is particularly stark in respect of Article 79, as it expressly deals with liability for customs debts. Regulation 12 Submissions

Regulation 12

[78]Mr Baig submitted that strict liability does not extend to a direct representative.[79]Mr Carey submitted that Regulation 12 makes no mention of knowledge as a requirement, with the effect that there was no mental element as a precondition of liability. He relied upon HMRC v Perfect [2022] STC 642 (“Perfect”) in the Court of Appeal, after having been remitted by the CJEU (see HMRC v WR Case C-279/19), for the proposition that where a mental element is required in legislation it is expressly stated, with the effect that no mental element is required where it is not so stated.[80]Mr Carey also relied upon the Upper Tribunal judgment in Hartleb v HMRC [2024] UKUT 00034 (TCC) (Mr Justice Johnson and Judge Vimal Tilakapala) to the effect that the purpose of the Excise Directive (and so the 2010 Regulations) is to have a broad definition of persons liable in order to ensure the collection of duty so far as is possible. The Upper Tribunal stated as follows at [56] to [58]:
“The purpose of the legislation [56] We agree also with Mr Carey’s submissions on the underlying policy of the Excise Directive. This was described by the Advocate General in his opinion in WR as follows: ‘As far as the aims of the Directive are concerned … the broad wording of the provisions at issue, which concern a series of persons potentially liable for the duties without any order of priorities being established, and who are jointly liable, seeks to guarantee that the tax debt is paid effectively and for this purpose someone must be held responsible.’ [29] The CJEU decision in WR (at [33]) summarised this as reflecting the intention of the EU Legislature to lay down a broad definition of the persons liable to pay excise duty on goods released for consumption in order to ensure that so far as possible that the duty is collected. [58] The principle of ensuring the collection of tax was recognised also by Baker LJ in the Court of Appeal when it first considered Perfect in 2019 ([2019] EWCA Civ 465) and again by Newey LJ when it subsequently applied the CJEU determination of the question. ‘We agree that the underlying policy of the 2008 Directive is, as identified by the Upper Tribunal in [B&M Retail Ltd v Revenue and Customs Comrs [2016] UK UT 429 TC, [2016] STC 2456], that it is the obligation of every Member State to ensure that duty is paid on goods that are found to have been released for consumption.’ [66]” ‘As far as the aims of the Directive are concerned … the broad wording of the provisions at issue, which concern a series of persons potentially liable for the duties without any order of priorities being established, and who are jointly liable, seeks to guarantee that the tax debt is paid effectively and for this purpose someone must be held responsible.’ [29] ‘We agree that the underlying policy of the 2008 Directive is, as identified by the Upper Tribunal in [B&M Retail Ltd v Revenue and Customs Comrs [2016] UK UT 429 TC, [2016] STC 2456], that it is the obligation of every Member State to ensure that duty is paid on goods that are found to have been released for consumption.’ [66]”
[81]Mr Baig submitted that Hartleb was of no assistance because it relates to de facto and legal control and in fact deals with the circumstances in which a principal will be liable rather than when an agent will be liable.

Discussion

[82]We find that, on a proper construction of Regulation 12, no knowledge of the irregularity is required for liability as “any person involved in the importation”. This is for the following reasons.[83]First, Regulation 12 does not say that knowledge of any kind is required. The only requirement is that of involvement in the importation. It is not limited by, for example, any knowledge, awareness or other state of mind.[84]Secondly, the required involvement is in the “importation” and so it does not even require involvement in the irregularity itself. It is difficult to see how knowledge of the irregularity is required in those circumstances.[85]Thirdly, whilst Perfect deals with Regulation 13 rather than Regulation 12, we agree that they support the proposition that the absence of any condition of knowledge in Regulation 12 means it is to be construed as not requiring knowledge. In Perfect, the Court of Appeal dealt with whether an innocent agent could be treated as “holding” or “making ... delivery of” goods for the purposes of regulation 13 of the 2010 Regulations and Article 33 of the Excise Directive. Newey LJ referred to, and cited from, the CJEU decision as follows:
“[12] The CJEU explained in its judgment: “[24] The concept of a person who ‘holds’ goods refers, in everyday language, to a person who is in physical possession of those goods. In that regard, the question whether the person concerned has a right to or any interest in the goods which that person holds is irrelevant. [25] Moreover, there is nothing in the wording of Article 33(3) of Directive 2008/118 to indicate that the status of person liable to pay the excise duty, as being ‘the person holding the goods intended for delivery’, depends on ascertaining whether that person is aware or should reasonably have been aware that the excise duty is chargeable under that provision. [26] That literal interpretation is borne out by the general scheme of Directive 2008/118. … [31] Furthermore, an interpretation limiting the status of person liable to pay the excise duty as being ‘the person … holding the goods intended for delivery’, within the meaning of Article 33(3) of Directive 2008/118, to those persons who are aware or should reasonably have been aware that excise duty has become chargeable would not be consistent with the objectives pursued by Directive 2008/118, which include the prevention of possible tax evasion, avoidance and abuse (see, to that effect, judgment of 29 June 2017, Commission v Portugal, C-126/15, EU:C:2017:504, paragraph 59).” “[24] The concept of a person who ‘holds’ goods refers, in everyday language, to a person who is in physical possession of those goods. In that regard, the question whether the person concerned has a right to or any interest in the goods which that person holds is irrelevant. [25] Moreover, there is nothing in the wording of Article 33(3) of Directive 2008/118 to indicate that the status of person liable to pay the excise duty, as being ‘the person holding the goods intended for delivery’, depends on ascertaining whether that person is aware or should reasonably have been aware that the excise duty is chargeable under that provision. [26] That literal interpretation is borne out by the general scheme of Directive 2008/118. … [31] Furthermore, an interpretation limiting the status of person liable to pay the excise duty as being ‘the person … holding the goods intended for delivery’, within the meaning of Article 33(3) of Directive 2008/118, to those persons who are aware or should reasonably have been aware that excise duty has become chargeable would not be consistent with the objectives pursued by Directive 2008/118, which include the prevention of possible tax evasion, avoidance and abuse (see, to that effect, judgment of 29 June 2017, Commission v Portugal, C-126/15, EU:C:2017:504, paragraph 59).”
[86]Newey LJ also stated as follows at [22] and [23]:
“[22] hat being so, it seems to me that we are bound by the CJEU’s judgment of 10 June 2021 to hold, as was anyway this Court’s inclination in 2019, that article 33 of the 2008 Directive and, hence, also regulation 13 of the 2010 Regulations: “must be interpreted as meaning that a person who transports, on behalf of others, excise goods to another Member State, and who is in physical possession of those goods at the moment when they have become chargeable to the corresponding excise duty, is liable for that excise duty, under that provision, even if that person has no right to or interest in those goods and is not aware that they are subject to excise duty or, if so aware, is not aware that they have become chargeable to the corresponding excise duty”
. In other words, a person need not be aware that excise duty is being evaded to be “holding” or “making … delivery of” goods for the purposes of regulation 13 of the 2010 Regulations or article 33 of the 2008 Directive. [23] It follows that the fact that Mr Perfect had neither actual nor constructive knowledge of the smuggling of the beer he was carrying cannot exempt him from liability from excise duty.” “must be interpreted as meaning that a person who transports, on behalf of others, excise goods to another Member State, and who is in physical possession of those goods at the moment when they have become chargeable to the corresponding excise duty, is liable for that excise duty, under that provision, even if that person has no right to or interest in those goods and is not aware that they are subject to excise duty or, if so aware, is not aware that they have become chargeable to the corresponding excise duty”.[87]Fourthly, we agree that Hartleb is authority for the proposition that the purpose of the Excise Regulations is to lay down a broad definition of the persons liable to pay excise duty on goods released for consumption in order to ensure that so far as possible that the duty is collected. This underlying policy supports an expansive definition of Regulation 12 rather than a narrow one in the comparable position of the persons involved in an importation where that importation is an irregular one. Involvement Canmi’s involvement Submissions

Involvement

[88]Mr Baig submits that an agent’s involvement in the commission of a wrong must be more than de minimis in order to give rise to liability. He referred us to the following commentary in Atkins Court Forms – Torts – Volume 38(1) at [33]:
“[33] A principal is liable in tort for any act committed by his agent where he has given the agent express authority to do the act. Where there is no express authorisation, the principal may still be liable for a tort committed by his agent while acting in the scope of his implied authority or where the tortious act or omission has been ratified by the principal. Where the act by the agent falls outside the scope of his authority, the principal is not liable.”
[89]Mr Baig also referred us to the Supreme Court’s judgment in Sea Shepherd UK v Fish and Fish [2015] UKSC 10 (“Fish”).[90]Mr Baig accepted that Canmi completed the forms and paid the relevant tax but submitted that this was not enough for involvement. He submitted in his skeleton argument that, “To be involved the Appellant would need to offer services other than merely completing a form and paying the applicable tax on account on behalf of the Importers. The Appellant would have to be acting as an indirect agent.”[91]Mr Carey submitted that there is no basis for a de minimis test. If any involvement is sufficient, then this would not preclude de minimis involvement. In any event, Canmi is substantially involved, even on the basis of the common ground as to Canmi’s services.

Discussion

[92]We do not accept that any involvement must be more than de minimis for liability under Regulation 12 to arise. Crucially, Regulation 12 places no fetter upon the type of involvement; either a person is involved or he or she is not.[93]The circumstances in which a principal is liable in tort for the actions of an agent are well summarised in the extract from Atkins Court Forms relied upon by Mr Baig. However, this says nothing about the level of involvement required for the purposes of Regulation 12. Even leaving aside the fact that it is dealing with tortious liability rather than taxation or statutory liabilities, it deals with the principal’s liability rather than the agent’s.[94]Similarly, Fish has no bearing upon liability for excise duty as it relates to accessory liability in tort. The principle of an act being more than de minimis arises in this context because of the need for an act by the accessory that furthered the commission of the tort by the principal tortfeasor and a common design. Lord Toulson stated as follows at [21]:
“[21] To establish accessory liability in tort it is not enough to show that D did acts which facilitated P’s commission of the tort. D will be jointly liable with P if they combined to do or secure the doing of acts which constituted a tort. This requires proof of two elements. D must have acted in a way which furthered the commission of the tort by P; and D must have done so in pursuance of a common design to do or secure the doing of the acts which constituted the tort. I do not consider it necessary or desirable to gloss the principle further.”
[95]Similarly, Lord Neuberger stated as follows at [55] and [57]:
“[55] It seems to me that, in order for the defendant to be liable to the claimant in such circumstances, three conditions must be satisfied. First, the defendant must have assisted the commission of an act by the primary tortfeasor; secondly, the assistance must have been pursuant to a common design on the part of the defendant and the primary tortfeasor that the act be committed; and, thirdly, the act must constitute a tort as against the claimant. As Lord Toulson says, this analysis is accurately reflected in the statement of the law in Clerk and Lindsell on Torts, 7th ed, p 59, cited by all members of the Court of Appeal in The Koursk [1924] P 140, 151, 156, 159. ... [57] So far as the first condition is concerned, the assistance provided by the defendant must be substantial, in the sense of not being de minimis or trivial. However, the defendant should not escape liability simply because his assistance was (i) relatively minor in terms of its contribution to, or influence over, the tortious act when compared with the actions of the primary tortfeasor, or (ii) indirect so far as any consequential damage to the claimant is concerned. Nor does a claimant need to establish that the tort would not have been committed, or even that it would not have been committed in the precise way that it was, without the assistance of the defendant. I agree with Lord Sumption that, once the assistance is shown to be more than trivial, the proper way of reflecting the defendant’s relatively unimportant contribution to the tort is through the court’s power to apportion liability, and then order contribution, as between the defendant and the primary tortfeasor.”
[96]Lord Sumption stated as follows in his dissenting judgment at [50]:
“[50] The judge regarded SSUK’s contribution to Operation Bluerage as “of minimal importance” and said that it “played no effective part in the commission of the tort”
. It was certainly minor by comparison with the contribution of SSCS and possibly by comparison with SSCS’s French associate. But if the judge meant that it was de minimis then I cannot agree. De minimis non curat lex is a necessarily imprecise principle. Most of the judges who have discussed it have done so in terms of synonyms which are not much less imprecise. But they nevertheless convey the flavour of the concept. “Negligible” and “trivial” are probably the commonest: see Cartledge v Jopling & Sons Ltd [1963] AC 758, 771-772, per Lord Reid, and Rothwell v Chemical and Insulating Co Ltd [2008] AC 281 at paras 44-47, per Lord Hope. “[T]rivialities, matters of little moment, of a trifling and negligible nature” was the more expansive formulation proposed by Sellers LJ in Margaronis Navigation Agency Ltd v Henry W Peabody & Co of London [1965] 2 QB 430, 443-444. What all of these expressions are designed to convey is that the maxim is concerned with extremes. It refers to some fact which is in principle legally relevant but is so trivial or negligible as to be no fact at all in the eyes of the law.”[97]The present case is not dealing with accessory liability for tortious acts. The statutory requirement under Regulation 12 is that of “any person involved in the importation.” There is no gloss on this. It does not provide for any added requirement for the involvement to be more than de minimis, or more than negligible, or more than trivial. Regulation 12 sets no threshold for the involvement. It is therefore a question of fact as to whether the person in question was involved or not.[98]In any event, we find that Canmi’s involvement in the importation was sufficient to engage Regulation 12 and (if we are wrong as to any need for this to be more than de minimis) was more than de minimis. We have made our findings as to what Canmi’s involvement was at paragraphs 16 to 35 above. We deal with the significance or otherwise of the capacity in which that involvement took place. However, as a matter of fact, Canmi was involved in the importation. In particular, Canmi completed and filed the C88 forms and made all relevant payments on Miss Bumah’s behalf.[99]We note that Mr Baig’s submission as to Canmi not in fact being involved is that it “would have to be acting as an indirect agent.” This suggests that it is the capacity in which Canmi was operating (which we deal with below) which precludes involvement rather than the services themselves. This does not detract from the fact that the importations of the Bumah Imports required the completion and filing of the C88 forms and the payment of the excise duty, which (aside from the question of capacity) was as a matter of fact carried out by Canmi. Canmi was thereby involved in the importations of the Bumah Imports. The declarant Submissions

The declarant

[100]Mr Baig submitted that the “declarant” is the importer when acting in their own right or through a direct representative. Where an indirect representative is acting on behalf of an importer and the declaration is made in the indirect representative’s own name, the indirect representative is the declarant. Mr Baig relies upon Article 4(18) of the Community Customs Code, Article 8(1)(d) of the Excise Directive, Article 7(1)(d) of the Recast Directive, Revenue and Customs Commissioners v AG Villodre SL [2016] UKUT 0166 (TCC), BMW Shipping Agents Ltd v HMRC [2022] UKFTT 00335 (TC), Grange Shipping Ltd v HMRC [2017] UKFTT 142 (TC), and Saleh Muhammad Hussain t/a Eastern Orbit v HMRC [2012] UKFTT 248 (TC). Mr Baig submitted that Miss Bumah was therefore the declarant as Canmi was acting as her direct representative.[101]Mr Carey does not dispute that Miss Bumah was the declarant for these purposes rather than Canmi. However, he submitted that this was of no relevance in the context of an irregular importation as the touchstone is that of involvement rather than the identity of the declarant.

Discussion

[102]We agree that Miss Bumah, rather than Canmi, was the declarant for the purposes of the Bumah Imports. This is because, to use the language of Regulation 12, Miss Bumah was (as regards the Bumah Imports) the person on whose behalf the excise goods were declared upon importation.[103]However, we also agree with Mr Carey that the identification of the declarant is only relevant for the purposes of liability under Regulation 12(1) (in respect of regular importations) as either declarant or the person on whose behalf the excise goods were declared upon importation. Regulation 12(2) is by its very nature wider than the declarant. Direct representatives Submissions

Direct representatives

[104]Mr Baig submitted that joint and several liability cannot arise in respect of a direct representative.[105]Mr Baig relied upon Storefast v HMRC [1996] Lexis citation 7381 (“Storefast”) in which Tribunal Chairman Horsfield stated as follows:
“4.1 Having considered the very limited evidence before me, I am driven to the conclusion that the Appellant is jointly liable with Arcos for the unpaid duty under Articles 201.3 and 213 of the Code, on the ground that it acted as an indirect representative or must be deemed to have so acted by virtue of Article 5.4 of the Code and I accordingly dismiss the appeal. 4.2. In reaching this decision I have felt considerable concern at the unsatisfactory format of the C88 declaration and of the relevant notes in the Customs Tariff as to its completion as those documents were constituted at the relevant time. (The unsatisfactory nature of C88 appears to have been accepted by the Respondents, since there is included at page 30 of the Appellant's bundle notification of changes in boxes 14, 44 and 54 to distinguish between direct and indirect representatives and to make it clear how each should complete the form. 1 July 1996 is given as the date of introduction of these changes, that is to say after the date of the matters with which I am concerned.) However, in the absence of any evidence that the relationship of the Appellant with Arcos was one of direct agency and, a fortiori, of any evidence that the relationship had been disclosed to the Respondents, it does not seem to me that the unsatisfactory state of the relevant documentation provides legal grounds for relieving the Appellant – though it does seem to me to provide strong moral justification for doing so. For had C88 and the notes been in a form which properly distinguished between direct and indirect representatives and indicated how a direct representative should complete the form, as in the amendments intended to take effect in July 1996, I have little doubt that the Appellant would have made it clear that it was acting as a direct representative. That being so, I would urge the Respondents to consider to what extent they can properly relieve the Appellant of a liability which would probably never have arisen had the relevant documentation been drafted by the appropriate authorities in the form contemplated by the 1 July 1996 amendments.”
[106]Mr Baig also relied upon GB Seed Ltd v HMRC [2012] UKFTT 343 (TC) (“GB Seed”) in which Tribunal

Judge Khan stated as follows at [19] and [20]:

“[19] The first question which must be asked is who is responsible for making the payment of the customs duties? Are the Appellants responsible? The Appellant had no formal contract to engage the services of Global, who acted for the Appellants over several years. The relationship between the parties was based on trust, understanding and an informal business relationship. The Appellants employed Global in good faith to act as their agent and the declarations listed in the C18 form were submitted by them on the Appellant's behalf. [20] Article 5 Counsel Regulation, (EC) 2913/92 state that a representative may be appointed to act on behalf of a party. The representation may be a direct or indirect representative. If direct, the representative shall act “in the name or on behalf of and on behalf of another person”
. If a person is appointed to act as a direct representative then the importer of the goods will be liable for the customs duties. If appointed to act in an indirect capacity, the agent can be jointly and separately liable with the importer. In the TARIC (EU's online customs tariff database) information provided, Global identified themselves as the direct representative of the Appellant and gave the relevant coded reference number which identified them as a direct representative. The document was signed by a representative of Global on 8 January 2009. The tribunal therefore finds as a primary fact that Global were the direct agents of the Appellant. In such a situation, the importer must ensure that the correct customs classification and declarations for the importation of the Goods, is made. They must ensure that payment of the import duties is made since the primary obligation to do so rest with the importer and not with their agents. An importer may enter into contractual arrangements which would safeguard against any negligence by their agents especially where post-clearance payments become due as a result of any incorrect customs classification entries. This was suggested in the case of Faroe Seafood & Others (1996) ECR 1-2465, at Para 114), a case referred to by the Respondent. The Appellants have been wrongly advised by their customs clearing agent, Global. That is a matter between the Appellant and their agent but it is not a matter that affects the Appellant's liability to the Commissioners in respect of the outstanding customs duties.[107]Mr Carey submits that Storefast and GB Seed are about the liability of those taxpayers to customs duty and the operation of direct and indirect representatives. As such, this has no effect upon excise duty.

Discussion

[108]We agree with Mr Carey’s submissions. Storefast and GB Seed are dealing with a different regime, as they relate to customs duty rather than excise duty. Crucially, the distinction between direct representatives and indirect representatives is of no consequence for excise duty in the case of an irregular importation, as Regulation 12(2) does not draw the distinction between the type of representative. Again, we note that “any person involved in the importation” is an expansive and unqualified test for liability. Agency Submissions

Agency

[109]Mr Baig submitted that as a matter of agency law an agent with actual or apparent authority is not liable for acts performed within the scope of authority. He relied upon Barwick v English Joint Stock Bank (1867) LR 2 Ex Ch 259 per Willes J at 265 to 266 as follows:
“But with respect to the question, whether a principal is answerable for the act of his agent in the course of his master's business, and for his master's benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong. The general rule is, that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved. That principle is acted upon every day in running down cases. It has been applied also to direct trespass to goods, as in the case of holding the owners of ships liable for the act of masters abroad, improperly selling the cargo. It has been held applicable to actions of false imprisonment, in cases where officers of railway companies, intrusted with the execution of bye laws relating to imprisonment, and intending to act in the course of their duty, improperly imprison persons who are supposed to come within the terms of the bye laws. It has been acted upon where persons employed by the owners of boats to navigate them and to take fares, have committed an infringement of a ferry, or such like wrong. In all these cases it may be said, as it was said here, that the master has not authorized the act. It is true, he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in.”
[110]Mr Carey relied upon the same points as to the general law of agency as in respect of direct representatives.

Discussion

[111]We find that general agency law is of no assistance to liability for excise duty in respect of an irregular importation. Crucially, “any person involved in the importation” is not capable of being construed as excluding agents. Further, the agency position is in effect the same as the distinction between a direct representative and an indirect representative; a direct representative is equivalent to an agent of a disclosed principal, and an indirect representative is equivalent to an agent of an undisclosed principal. For the same reasons as set out above in respect of direct and indirect representatives, this is not a distinction which has any bearing upon liability for excise duty under Regulation 12(2).

Disposition

[112]It follows that, notwithstanding Canmi’s position as a direct representative or agent acting on behalf of Miss Bumah (and, in fact, because of the services provided by Canmi in that regard), Canmi was involved in the importation for the purposes of Regulation 12(2) and so is jointly and severally liable for the excise duty as set out in the Notice.[113]For the reasons set out above, we therefore dismiss the appeal.

Right to apply for permission to appeal

[114]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. Release date: 22nd JULY 2025