[2025] UKUT 00031 (TCC)

The context for the applicant’s point is as follows. HMRC’s Amended Statement of Case (“ASoC”) (which had not been put before me at the papers stage of the application but was before me at the oral renewal hearing) contained a section detailing HMRC’s visit to the appellant on 1 February 2017. In particular paragraph 28 detailed the goods made available to HMRC by the applicant during the visit – recording what the item’s label stated and in the case of items A,B and E-H that the item had the “appearance of a PU leather…” handbag/bag. The application goes on to argue that a finding that a total of seven items fell within the lower duty rate instead of one (Item C), should potentially have significant effect. In his oral submissions Mr Brown argues the significance of the point needs to be viewed against the backdrop of there being no individual sample out of the total 15 (the 8 HMRC had seen plus the 7 in Professor Bush’s report) before the FTT which was shown to be classified at the higher duty rate of 9.7%. Mr Brown also submitted the fact the appearance was recorded by HMRC’s officer should not be ignored.

In agreement with Ms Vicary however, the fact the appearance had been noted as a “PU leather bag” did not address the “naked eye” test and the specific question relevant to classification namely whether the outside layer had the “visual appearance of manufactured plastic sheeting”. Given that lack of relevance there could in my view be no error of law in the FTT failing to take account or record that it had taken into account such description. Mr Brown’s point that no sample was shown to be 9.7% or that the note of appearance was recorded by HMRC’s officer does not make something that was irrelevant, from the outset, to the necessary visual test, any less irrelevant.

Moreover, even if it could be said the FTT had made any error in failing to take account or record its taking account of such notation of appearance, remedying that error would not lead to any different result in Laurence Supply’s favour given the notation did not address the specific relevant “naked eye” test and in view of the other more specific evidence pointing the other way. (As Ms Vicary pointed out, Ms Wilkes’ evidence did specifically address the relevant naked eye test. That stated at [46]: “The most striking aspect of the site visit to me, was that all of the bags and purses in stock imported by the Appellant were made from polyurethane and other than the two items partially made of imitation suede, had the visual appearance of plastic sheeting.”)