Paul David Eveleigh v The Commissioners for HMRC
[2023] UKFTT 356 (TC)
Andrzej Osmolski v The Commissioners for HMRC
23 October 2023
[2023] UKFTT 905 (TC)
First-tier Tribunal
A lorry driver was caught smuggling tobacco. He said he was tricked, but the judge didn't believe him and said he had to pay the taxes and fines because he knew (or should have known) what he was doing was wrong.
Key Facts
- •Andrzej Osmolski appealed HMRC's decisions to issue an excise duty assessment of £168,948 and a penalty of £97,145 for hand-rolling tobacco found in his van at Coquelles Freight.
- •Osmolski claimed he was a victim of fraud, believing he was transporting car parts.
- •The tobacco had Luxembourg tax stamps and was concealed within boxes labeled as kitchen furniture.
- •Osmolski provided inconsistent accounts of the events leading to the interception.
- •HMRC argued Osmolski was strictly liable for the duty and penalty due to his possession of the goods at the excise duty point.
Legal Principles
Excise duty is payable on tobacco products held for a commercial purpose in the UK. The UK excise duty legislation applies to the Control Zone at Coquelles, France.
Tobacco Products Duty Act 1979, Section 2; Channel Tunnel (Customs and Excise) Order 1990, Article 5(2)(a); Channel Tunnel (Alcoholic Liquor and Tobacco Products) Order 2010, Article 2; Excise Goods (Holding, Movement and Duty Point) Regulations 2010, Regulation 13
The person liable to pay the duty is the person making the delivery, holding the goods intended for delivery, or to whom the goods are delivered. Liability is strict.
Excise Goods (Holding, Movement and Duty Point) Regulations 2010, Regulation 13(2)
A penalty is payable for deliberate and concealed handling of goods with unpaid excise duty. Mitigation is available for disclosure.
Schedule 41, Finance Act 2008, paragraphs 4, 6(2), 12, 13
"Deliberate" requires intention to mislead or recklessness as to whether a statement would mislead.
Tooth v HMRC [2021] UKSC 17
‘Blind-eye’ knowledge (deliberately ignoring suspicious circumstances) is equivalent to knowledge.
Chohan Management Limited v HMRC [2021] UKFTT 196 (TC)
A transporter is liable for excise duty even without right to or interest in the goods, or awareness of excise duty.
HMRC v WR [2021] EUECJ C-279/19
Outcomes
Appeal dismissed.
The Tribunal found Osmolski's evidence unreliable and inconsistent. His actions demonstrated either knowledge or 'blind-eye' knowledge of the illegal nature of the consignment. His liability for excise duty was strict, and the penalty was upheld with the mitigation already given.