“(1) The person liable to pay the duty when excise goods are released for consumption by virtue of regulation 6(1)(b) (holding of excise goods outside a duty suspension arrangement) is the person holding the excise goods at that time. (2) Any other person involved in the holding of the excise goods is jointly and 15 severally liable to pay the duty with the person specified in paragraph (1).”
“(1) Where excise goods already released for consumption in another Member 20 State are held for a commercial purpose in the United Kingdom in order to be delivered or used in the United Kingdom, the excise duty point is the time when those goods are first so held. (2) Depending on the cases referred to in paragraph (1), the person liable to pay the duty is the person – 25 (a) making the delivery of the goods; (b) holding the goods intended for delivery; or (c) to whom the goods are delivered.”
“Where an irregularity occurs in the United Kingdom, the excise goods are 10 released for consumption in the United Kingdom at the time of the irregularity or, where it is not possible to establish when the irregularity occurred, the time when the irregularity is detected or first comes to the attention of the Commissioners.”
“…were Mrs Smith able to satisfy HMRC that she acquired the goods in the manner in which she contended, then it would not be open to HMRC to assess Mrs Smith but they would have to proceed against the wholesaler from whom she purchased the goods, who in turn might provide evidence that established an 40 earlier excise duty point. Therefore, if HMRC pursued Mrs Smith rather than any other person who it was able to establish was a previous holder of the goods, or who caused any other prior event which gave rise to an excise duty point, then it would be open to Mrs Smith to challenge any assessment made by HMRC through an appeal to the FTT. That tribunal would have a full merits jurisdiction 45 17 to consider Mrs Smith’s appeal and to decide whether it accepted Mrs Smith’s evidence that she had bought the goods in question from the wholesaler. If it did, the assessment against her would have to be discharged.”
“Clearly HMRC cannot make an assessment until it has the necessary information on which to establish when, how, where and by whose acts the excise duty point occurred. Therefore, in the absence of any relevant information 15 in relation to any prior release for consumption, HMRC must assess the person who it finds to be holding the goods in question, since that is the only excise duty point which HMRC is able to establish.”
“Definition of holding 5 There is no definition of “holding” given in Council Directive 2008/118 or in the HMDP Regulations. You should keep the concept of holding as uncomplicated as possible and consider this primarily to mean the physical possession of the goods. Physical possession will normally involve some form of physical control over the goods, including access to those goods and control over the location 10 where those goods are held. It does not mean simple ownership or title of the goods.”
“‘Holding’ is an imprecise term which could embrace actual possession of the tobacco products and, perhaps, both constructive possession… and also control of the tobacco products.”
“The first question is whether any defendant was ‘holding’ the counterfeit cigarettes at the time that the vessel entered the port of Felixstowe on 2230 September 2004 . As the law currently stands, that depends on whether any of them had possession or control of the cigarettes at that point. Obviously, none of them was physically in possession of the cigarettes at the time. However, it is elementary commercial law that if a person is the lawful holder of a bill of lading then he has ‘symbolic’ or ‘constructive’ possession of the goods that are 35 identified in the bill of lading, such that he can demand their delivery up by the shipowner at the completion of the contractual voyage. We are prepared to assume, without deciding the point, that for the purposes of Regulation 13(3)(e) of the 2001 Regulations, a person who is the lawful holder of a bill of lading for the goods in respect of which he intends to import will be ‘holding’ those goods, 40 whether or not he is the consignor or consignee named in the bill of lading.”
“a. Mere couriers or incidental custodians, who are rewarded by way of fixed fee 5 and have no beneficial interest in the tobacco, are likely to be excluded from the definition of 'obtaining property' for the purposes of confiscation orders… … d… ‘holding’ for the purposes of Regulation 13(1) can be a question of law, and does not require physical possession of the goods, and the test is satisfied by 10 constructive possession. The test for 'holding' is that the person is capable of exercising de jure and/or de facto control over the goods, whether temporarily or permanently, either directly or by acting through an agent … e. There is no need for the person to have any beneficial ownership in the goods in order to be a ‘holder’... A courier or person in physical possession who lacks 15 both actual and constructive knowledge of the goods, or the duty which is payable upon them, cannot be the ‘holder’ within Regulation 13(1) …”
“(1) Is a person (‘P’) who is in physical possession of excise goods at a point when those goods become chargeable to excise duty in Member State B liable 25 for that excise duty pursuant to Article 33(3) of Directive 2008/118/EC ("the Directive") in circumstances where that person (a) had no legal or beneficial interest in the excise goods; (b) was transporting the excise goods, for a fee, on behalf of others between Member State A and Member State B; and 30 (c) knew that the goods he was in possession of were excise goods but did not know and did not have reason to suspect the goods had become chargeable to excise duty in the Member State B at or prior to the time that they became so chargeable? (2) Is the answer to question (1) different if P did not know that the goods he was 35 in possession of were excise goods?”