Arfan Khan led Mr Joseph Howard in the Court of Appeal on a first time tax appeal of general public importance.
The Appellant is an Italian company. It provides containers and logistics services across Europe. The Appellant arranged the transport of goods for a customer, a Romanian company, GBT. This included a quantity of wine, which was seized by UK Border Force on the basis that excise duty had not been paid.
On 12 May 2015, HMRC issued an assessment to excise duty in respect to the seized wine to GBT. On 17 December 2015, HMRC issued the appellant with a reduced penalty assessment calculated on the basis that the Appellant’s conduct was not deliberate.
The Appellant appealed to the FTT on the basis that Article 37 of Directive 2008/118/EC (“the Excise Duties Directive”) meant that as the wine had been lawfully seized and destroyed, no excise duty point ever arose, the appellant was an innocent agent, and the penalty assessment was out of time. The FTT dismissed the appeal.
The Appellant appealed to the Upper Tribunal. The Upper Tribunal granted permission to appeal. However, it dismissed the appeal holding that Article 37 did not apply. The Appellant applied directly to the Upper Tribunal for permission to appeal to the Court of Appeal. Arfan Khan was then instructed and led a written skeleton argument for permission to appeal to the Court of Appeal.
The Upper Tribunal exceptionally granted permission to appeal against its own decision on the Article 37 ground. It held that the appeal raised a point of general public importance in respect of which there were real prospect of success.
The Respondent filed a Respondent’s notice seeking to uphold the Upper Tribunal on the basis that excise duty was chargeable by reason of a deemed duty point following the reasoning in Jones v HMRC, and that Article 37 did not as a result apply.
The Respondent’s notice proceeded contrary to what was alleged to be written concessions made by the Respondent. It was alleged that the Respondent had conceded before the Upper Tribunal that the basis of seizure did not necessarily require duty points to arise where the goods had been lawfully seized, and there was no challenge to the legality of the seizure.
Following the grant of permission, the Appellant filed supplemental submissions in response to the Respondent’s notice. These included a novel submission, not considered in Jones v HMRC, namely that, if the statutory deeming provisions apply to bar jurisdiction, they should be set aside in order to give effect to Article 37 of the EC Directive and Article 47 of the EU Charter and/or declared incompatible with Article 6 of the ECHR. The supplemental submissions distinguished the decision in Jones.
The Court of Appeal (Lord Justice Patten, Lord Justice Baker, and Mr Justice Mann) dismissed the appeal holding:
“50. As Mr Khan and Mr Howard on behalf of the appellant accepted in the course of the hearing before us, unless Article 37 subsequently disapplied its effect, there can be no doubt that the provisions of Article 33 were satisfied. The wine in the fifth container had been “released for consumption” in Italy. At the point of arrival at Purfleet, it was being “held for commercial purposes … in order to be delivered here”. Accordingly, it was subject to excise duty here and excise duty became chargeable here. At that point, under regulations 5 and 6 of the HMDP Regulations, an “excise duty point” arose and the appellant, being a person “concerned in carrying … the goods”, became liable to a penalty under paragraph 4 of schedule 41 to the Finance Act 2008.
51. Did Article 37 apply so as to prevent excise duty being chargeable on the wine? In my judgment, it did not, for the reasons identified by the UT at paragraphs 61 to 71 of its decision. …
52. In the context of this appeal, the construction of Article 37 turns on two phrases: (1) “during their transport in a Member State” and (2) “as a consequence of authorisation by the competent authorities of that Member State”.
53. I agree with the UT that “transport” should be given its ordinary meaning. For my part, I derive no assistance by comparing and contrasting the use of the word “movement” in Article 38. The wine in the appellant’s container was being transported from the ship to its ultimate destination in the UK. Had it continued on its journey, it would have been “transported” until it reached its destination. But it did not continue on its journey. It was seized by Border Force and held by that agency until it was destroyed following forfeiture. At the time of its destruction, it was not being “transported”.
54. As for the second phrase, I do not accept the submission that the ultimate destruction of the wine by or on behalf of Border Force following forfeiture falls within the scope of the phrase “as a consequence of authorisation by the competent authorities”. The destruction of the wine following forfeiture took place on the orders of Border Force. The word “authorisation” means the granting of official permission. The plain and obvious purpose of including that phrase in Article 37 is to cover the destruction of goods which are partially, but not totally, destroyed in transit. Article 7(4) provides that, for the purpose of this Directive, goods shall be considered totally destroyed or irretrievably lost when they are rendered unusable as excise goods. But there will be other cases where the goods are substantially damaged while being transported but have not become totally unusable (for example, where a proportion of a consignment of wine bottles are broken but the remainder are intact). Article 37 allows for circumstances where the competent authorities may formally agree to the destruction of the remainder so as to remove them from the scope of the duty”.
The Court of Appeal held that the Respondent’s notice had become academic by reason of the Appellant’s concession on appeal as follows:
“63. I would be reluctant to embark on a lengthy analysis of HMRC’s alternative argument raised in its respondent’s notice based on its interpretation of the decision in Jones. I take that view for three reasons. First, as I have just concluded, I consider the UT’s decision as to the construction of Article 37 was correct. On behalf of the appellant, Mr Khan in effect accepted at the outset of the hearing before us that, subject to its being subsequently removed by Article 37, an excise duty point arose under Article 33, and it must have persisted. The two factors which HMRC are seeking to have “deemed” from the failure of the appellant to contest the condemnation of the wine – that excise duty was chargeable and an excise duty point had arisen – are therefore conceded by the appellant. The “deemed duty” point is therefore of academic interest only in this appeal..”.
As a result, and amongst other reasons, the Court of Appeal refused to offer any expansive dicta on the Respondent’s notice. However, it concluded that the Upper Tribunal’s comments on the interpretation and application of the decision in Jones (based on the Respondent’s concession below) should not be regarded as authoritative. The Court of Appeal did not permit the Respondent to resile from what the Upper Tribunal described as a concession. It left open the possibility of argument in future cases.
Arfan Khan has a specialist appellate practice in Chancery, Commercial and Public law. He also has a substantial litigation practice in Chancery, Commercial and Public law. He is an experienced pleader, as evident from his numerous reported cases at appellate level, as well as in the High Court both as a leader and sole counsel.
The Court of Appeal judgment can be access here:
https://www.bailii.org/ew/cases/EWCA/Civ/2020/405.html
