TC09646 - [2025] UKFTT 01123 (TC)

Fecha: 09-Sep-2025

Documentary evidence

Documentary evidence

The principal documentary evidence on which we rely from within the bundles is:

(1)

Copy invoices issued by the Appellant all of which described the goods supplied as “Dairy products misc. cream/beverage infusers 600 x 8g cylinder”. There was one such invoice dated 11 Augst 2021 attached to his witness statement and further invoices had been provided to HMRC for March and April 2021. These latter invoices were consecutively numbered from invoice number 77683 to 77788. The recipients of the supplies, as shown on the invoices, were predominantly limited companies, the names of most indicated that they were either wholesalers or catering companies. Some invoices were addressed to named individuals.

(2)

Packaging for 8g Mosa ultra 8g Chargers. The packaging states that the Chargers are N2O Food Grade E942. They are not for medical use. It promotes them “For use with food in limited quantity” and “for whipping cream with a Cream Whipper only”. The maximum quantity for the Cream Whipper is stated to be 8g for 500m/0.5L cream. The instructions for use state:

“Before use carefully read the instruction manuals of the pressure regulator and the Cream Whipper.
Carefully screw the pressure regulator onto the top of the secured cylinder in a straight up position (do not cross thread) and tighten by hand.
Use the special adapter to connect the pressure regulator with the Cream Whipper. …”

(3)

Pictures of the Chargers as provided from information shown on the website for Mosa Industrial Corp. These indicate that the Chargers are made of metal and are torpedo shaped with one rounded end and a short tapered narrow end which we understand was attached to the pressure regulator.

(4)

The Mosa International Corp website appears to provide some suggested recipes using N2O; however, the recipes were not specific as to whether all, or indeed any, were produced using the Chargers or other N2O products. It was apparent from the further website material that Mosa International supply compressed gas of various sorts for use in various settings and not only culinary gasses.

(5)

Again from the Mosa International Corp website, a picture of what we understand to be the Cream Whipper. The Cream Whipper looks similar to an insulated drinking bottle and shows a maximum capacity of 0.75l. Attached to the top of the bottle is a nozzle and leaver and a regulator into which we understand the Chargers were screwed. Other pictures showed that the Cream Whipper was used inverted to extrude or inject the contents through a range of nozzles.

Included in the bundle were documents concerning a product called the “infuso stream”. This product also uses a N2O canister, and the product information described this product as a beverage infusion machine which used the properties of N2O to create delicately infused waters wines, vinegars, oils, spirits, mocktails and cocktails. The N2O canister used in this product appeared to be very significantly larger than the Chargers.

We were also provided with a letter prepared by Professor Keshavan Niranjan of University of Reading dated 28 January 2022. In a decision dated 8 March 2024 Judge Anne Redston determined that letter was not an expert report meeting the requirements of Part 35 Civil Procedure Rules and could not be relied upon as such. Directions were made on 8 March 2024 for the parties to agree instructions for expert witnesses and each of HMRC and the Appellants were granted permission to appoint experts and for the reports of such experts to be admitted in evidence. In a second judgment dated 31 May 2024 Judge Redston made further directions concerning the draft instructions to experts, making amendments to the draft. She directed that the Appellant could use the instructions to instruct an expert, be that Professor Niranjan or otherwise. The Appellant did not serve an expert witness statement.

10.

HMRC applied for the letter of 28 January 2022 to be removed from the bundle and, in the alternative, objected to any reliance being placed on it. We refused the application to exclude the letter. We considered that the Appellant was entitled to refer to it in the same way as it might to any other correspondence and we would place such weight, if any, on it as we considered appropriate when evaluating the evidence as a whole. In this regard, we note that in his closing Mr Parr indicated that he did not consider Professor Naranjan’s opinion to be materially different to that expressed by Mr Tallon. Accordingly, we take the view that to the extent that the opinions are consistent it is appropriate to rely on both; however, where they differ no reliance should be placed on that of Professor Niranjan. We identify in our discussion of Mr Tallon’s evidence where it is corroborated by Professor Niranjan.

Witness testimony

11.

Mr Parr and Mr Tallon both gave sworn evidence and were cross examined.