[2025] UKUT 00315 (TCC)

HMRC’s original decision dated 2 September 2021 refused the Appellant’s excise duty drawback claim. The original decision relied upon a conclusion that the Appellant’s claim did not meet the conditions of the EGDR. The reasons given for refusal were summarised by the FTT at [54]-[55] of the Decision:

“54.

In the Original Decision dated 2 September 2021 Officer O’Rourke identifies a number of respects in which the Appellant’s Claim does not meet the conditions of EGDR, including those specified in EN 207:

(1)

The NOI (Footnote: ¹) had been completed on the basis that the goods would be dispatched to an EU country (the Netherlands) whereas the final tranche of goods had been exported and not dispatched (as by 8 April 2021 there was no basis for dispatch of goods – the UK having left the EU). Further, the dispatch documentation for the earlier movements had included goods which were not within the NOI (i.e. the 112 cases of vodka). Therefore, the circumstances on which the NOI had been completed had changed and the Appellant should have notified HMRC of the change prior to export in accordance with paragraph 4.12 EN 207.

(2)

The requirement that the export on 8 April 2021 be evidenced by way of a CHIEF printout showing a “departed status of 60” had not been met as required by paragraph 7.4 EN 207.

(3)

There was no evidence of a record of the URNo for each duty stamp obliterated such that the provisions of paragraph 4.5 EN 207 were not met.

(4)

The regulation 7(6) time limit had not been met and no satisfactory explanation for that failure had been articulated justifying waiver of the condition.

55.

The letter concludes that as the conditions for drawback have not been satisfied the Claim is rejected.”

The FTT then summarised the basis of the Appellant’s request for a review of HMRC’s original refusal decision at [56]-[57]:

“56.

A review was sought. The request for review asserted that the Original Decision had been unreasonable on four grounds which were summarised and then particularised. The summary stated:

“a.

[the decision to refuse] has failed to meet the portion of the claim in which there is no suggestion of any breaches of conditions or advance criteria required.

b.

It has taken into account or given improper weight to irrelevant factors including elements of the movement which were not subject to the claim or factors preceding November 2019 when assurance was sought that the claim could be accepted by HMRC.

c.

It has failed to take into account or give sufficient weight to relevant factors including the guidance published by HMRC, the legislation introduced by HMRC, and the system operated by HMRC in such a way as to make one of the export conditions impossible to meet.

d.

It fails to properly consider the exercise of the Commissioners’ discretion to waive any and all conditions which necessarily calls for a proper consideration of the impact on DFUK for rejecting the claim and any countervailing considerations.”

57.The particularised errors were identified as:

(1)

The shipment of 112 bottles of vodka along with the goods which were the subject of the Claim was irrelevant to whether the Claim was valid and met the statutory conditions. They had not been included in the NOI or claim.

(2)

There was no requirement to amend the NOI, the information required in EX75 had not changed; in particular, there was no requirement to notify that some of the goods were exported post 31 December 2020.

(3)

HMRC were not entitled to reject the whole of the claim on the basis of a failure to provide the appropriate export documentation. They could, at most, cause the Claim to be reduced, excluding the duty claimed in respect of the goods exported on 8 April 2021. Further, and in any event, as it was impossible to obtain the documentation HMRC purportedly required to support a post Brexit shipment by roll-on-roll-off ferry there was no basis for rejecting the claim in respect of the April shipment.

(4)

There was no basis for rejection of that part of the claim pertaining to goods for which there was no requirement to obliterate. Further, sufficient and adequate records had been produced to HMRC of obliteration to justify a conclusion that either the requirement to obliterate had been met or, to the extent that a record of the obliterated URNo was a condition, it should be waived.

(5)

HMRC had failed to meet the Appellant’s legitimate expectation that the claim would not be rejected for failure to comply with the time limit condition.”

The FTT then summarised at [58] the basis of HMRC’s review decision dated 24 November 2021 and reasons for upholding the refusal of the claim:

“58.

The Review dated 24 November 2021 focusses on the time limit condition. It rejects the Appellant’s contention that the email of 27 December 2019 represented a waiver of the time limit. The position adopted in the letter is that because other conditions for drawback have not been met and there are no other exceptional circumstances, there can be no waiver of the time limit. The letter does not indicate that HMRC had the power to waive any of the other conditions. The identified failures are as previously:

(1)

The inclusion of 112 cases of vodka on which duty had not been paid.

(2)

A failure to provide the relevant evidence of export for the April 2021 shipment.

(3)

The absence of a record of the unique reference of the duty stamps obliterated.

(4)

The failure to notify that some of the goods were not exported by way of dispatch.”