TC09620 - [2025] UKFTT 01061 (TC)

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

HMRC assert that the warehouse approval decision was solely made under s 92 CEMA. If this is correct, and this is the basis on which HMRC will restrict itself in these proceedings, the appellant is willing to accept this. It will therefore be a relevant decision under para 2(1)(n)(ii) of schedule 5 which reads as follows:

“(n)

any decision for the purposes of section 92 (approval of warehouses)—

(i)

as to whether or not any approval is to be given to any place as a warehouse or any consent is to be given to any alteration in or addition to any warehouse;

(ii)

as to the conditions subject to which any approval or consent is given

for the purposes of that section; or

(iii)

for the withdrawal of any such approval or consent;”

However, Majestic considers that the warehouse approval decision is made under s 93 CEMA or the regulations made by that power. If correct, and if HMRC do not commit to only relying on s 92 CEMA, it will be a relevant decision under para 2(2) of schedule 5 FA which reads as follows:

“(2)

Any decision which is made under or for the purposes of any regulations under any of sections 3, 31 or 93 of the Management Act (application to pipe-lines, control of movement of goods and warehousing regulations) and is-

(a)

a decision in relation to any goods as to whether or not they may be moved,

deposited, kept, secured, treated in any manner, removed or made available

to any person or as to the conditions subject to which they are moved,

deposited, kept, secured, treated in any manner, removed or made available

to any person;”

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

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

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

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

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

AWRS approval decision