UT/2023/000019 - [2024] UKUT 00108 (TCC)

Sections 1(1)(a) and 2(1) of the Tobacco Products Duty Act 1979 provide that excise duty shall be charged on tobacco products imported into or manufactured in the UK.

Regulation 5 of the Excise Goods (Holding, Movement and Duty Point) Regulations 2010 (“HMDP Regulations”) relevantly provides that there is an excise duty point at the time when excise goods are released for consumption in the UK.

Regulation 6(1)(b) of the HMDP Regulations provides that excise goods are released for consumption in the UK at the time when the goods are held outside a duty suspension arrangement and UK excise duty on those goods has not been paid, relieved, remitted or deferred under a duty deferment arrangement.

Regulation 10(1) of the HMDP Regulations provides that the person liable to pay the duty when excise goods are released for consumption by virtue of regulation 6(1)(b) is the person holding the excise goods at that time.

Regulation 20(1) of the HMDP Regulations has the effect that duty must be paid at or before an excise duty point.

Section 170(1)(b) CEMA makes it a criminal offence knowingly to be concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods which are chargeable with a duty which has not been paid, with intent to defraud His Majesty of any duty payable on the goods.

Section 12(1) of the Finance Act 1994 (“FA 1994”) empowers HMRC to issue an assessment to a person from whom any amount has become due in respect of any excise duty. Under section 12(4) any such assessment must be made by HMRC within 4 years of the time when the liability to the duty arose or within one year from the day on which evidence of facts, sufficient in the opinion of the HMRC to justify the making of the assessment, comes to their knowledge, whichever is the earlier.

Sections 13A(2)(b) and 16(1B) FA 1994 provide for an appeal to the FTT against a decision of HMRC to issue an assessment to excise duty under s 12(1) FA 1994.

Section 16(5) FA 1994 provides that the power of the FTT in such an appeal includes the power to quash or vary any decision and the power to substitute its own decision for any decision quashed on appeal.

Section 16(6) FA 1994 provides that in such an appeal to the FTT against an assessment, with certain limited exceptions, it is for the appellant to show that the grounds on which any such appeal is brought have been established.

Section 154(2)(a) CEMA provides that where in any proceedings relating to customs or excise any question arises as to whether or not any duty has been paid or secured in respect of any goods, then, where those proceedings are brought by or against HMRC, the burden of proof shall lie upon the other party to the proceedings.