TC09620 - [2025] UKFTT 01061 (TC)

Section 41A(1) ALDA provided:

“A person registered by the Commissioners under this section may hold, on premises so registered in relation to him, any beer of a prescribed class or description -

(a)

which has been produced in, or imported into, the United Kingdom, and

(b)

which is chargeable as such with excise duty,

without payment of that duty.

Under s 41A(5): “The Commissioners may register a person or premises under this section for such periods and subject to such conditions as they think fit.”

Under s 41A (6):

“The Commissioners may at any time for reasonable cause -

(a)

revoke or vary the terms of their registration of any person or premises under this section; or

(b)

restrict the premises which are so registered.”

Under s 47(1) ALDA:

“A person who produces beer on any premises in the United Kingdom must be registered with the Commissioners under this section in respect of those premises; and in this Act “registered brewer” means a person registered under this section in respect of any premises.”

Under regulation 6(7) of the Beer Regulations it is provided that:

“The Commissioners may, for reasonable cause, vary the registration of a registered brewer with respect to any registered brewery, provided that the Commissioners shall give 14 days’ notice in writing of such variation.”

HMRC cannot have imposed conditions pursuant to the provisions they cite as those provisions simply give HMRC the power to revoke or vary the terms of approval or registration. It is the underlying power to impose conditions which is utilised when any decision is made to vary the relevant approval to bear such conditions.

The appellant accepts that the beer approval decision at least partly falls within the terms of para 3(2B)(b) of schedule 5 which reads as follows:

“Any decision which is made under or for the purposes of section 41A or 47, or any regulations under section 49, of the Alcoholic Liquor Duties Act 1979 (regulation of the making of beer) and is a decision—

(a)

as to whether or not to register a person or premises under section 41A or 47;

(b)

as to the conditions subject to which a person is, or premises are, so registered…

(e)

as to whether or not to restrict or prohibit the movement of beer from one place to another without payment of duty.”

However, the decision must in part relate to s 42 ALDA in respect of the drawback element. The condition imposed here, in effect, is that drawback is allowable so long as the person claiming it is not Majestic. If HMRC are correct and are willing to restrict themselves to only reliance on the above provisions of ALDA, the appellant is willing to accept this. If, however, HMRC does not accept that, and it turns out this power was used, it would be a relevant decision under para 3(1)(j) of schedule 5 FA which reads as follows:

“(j)

any decision as to whether or not drawback is to be allowed in any case under section 42 (drawback on exportation etc.) or as to the conditions subject to which drawback is so allowed”

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

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

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

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