[2025] UKUT 00315 (TCC)

to provide for the determination of the person on whom any such entitlement is conferred;

Part II of the EGDR, Regulations 5-13, is headed “Entitlement to Drawback”. Regulations 5 and 6 of the EGDR provide that claims for excise duty drawback may only be made in respect of eligible goods by eligible claimants. Eligible goods include ones on which ‘duty has been paid and not remitted, repaid or drawn back and those goods have been a) exported…” by virtue of Regulation 5(2)(a). There was no dispute that the Appellant and the goods satisfied the eligibility criteria.

Regulation 12(1) provides that “No drawbacks shall be payable unless it is shown to the satisfaction of the Commissioners that the claimant is an eligible claimant and that the goods are eligible goods” and 12(3) provides (3) “If the Commissioners are not satisfied that the amount of duty claimed may be drawn back but are satisfied that some lesser amount of duty may be drawn back they may, in such circumstances as they see fit, permit the drawback of that lesser sum.”

Regulation 7(1), (2), (3) & (6) of the EGDR provide relevantly that eligible claimants shall comply with the conditions imposed by the regulations and by HMRC in public notices or in notices imposing additional conditions:

“7.— (1) Subject to paragraph (2) below and without prejudice to any condition imposed by, or in accordance with section 133 of the [Customs & Excise Management] Act, every eligible claimant shall—

(a)

save as the Commissioners may otherwise allow, comply with the conditions imposed by these Regulations; and

(b)

in addition to those conditions, comply with such other conditions as the Commissioners see fit to impose in a notice published by them and not withdrawn by a further notice.

(2)

If the Commissioners consider it necessary for the protection of the revenue they may, by a notice in writing delivered to a revenue trader, require him to comply with such additional conditions as they think fit to impose.

(3)

Sections 14 to 16 of the Finance Act 1994 shall have effect in relation to any decision of the Commissioners to impose additional conditions under paragraph (2) above as if that decision were a decision of a description specified in Schedule 5 to that Act.

…

(6)

No claim for drawback shall be made if the event giving rise to the claim occurred more than three years after the duty on the goods in question was paid.”

HMRC’s powers under Regulation 7 therefore clearly include a discretion under Reg.7(1)(a) EGDR to ‘otherwise allow’ a claim for drawback where conditions imposed by the regulations are not complied with. We will sometimes describe HMRC’s discretion to ‘otherwise allow’ a claim despite non-compliance with regulations as a power to ‘waive’ compliance with conditions imposed by the EGDR.