Customs and Excise – Duties – Imported goods – Personal use
Stern v United Kingdom Border Agency: Queen's Bench Division, Divisional Court: 23 January 2013
The appellant was a Jewish man in his mid-70s with a very large immediate family. He also had a full-time driver, whom he employed personally and who was insured to drive the appellant’s car. It was the appellant’s custom to provide, inter alia, wine for his family for the Jewish celebrations of Purin and Passover. Typically, he would buy wine in the European Union and have his driver go to Europe and bring the wine back to the UK in the appellant’s car. The driver was not paid any additional amount for doing that and the appellant paid for the wine directly with the supplier.
Further, the appellant received no payment from anyone else for supplying the wine for the celebrations of Purin and Passover. In early 2012, the appellant, having purchased some 540 bottles of wine at an auction, sent his driver to bring the wine back to the UK. As usual, the appellant did not accompany his driver. At Dover port, the defendant UK Border Agency (UKBA) contended that the wine was subject to duty, pursuant to regulation 13(3)(b) of the Excised Goods (Holding Movement and Duty Point) Regulations 2010 SI 2010/593, as it had been imported for commercial purposes. The magistrates’ court found that, although it had accepted that the wine was all for the appellant's personal use, as he had not been physically present at the moment of importation the wine had been imported for a commercial purpose. The appellant appealed by way of case stated.
The question for the determination of the court was whether the requirement in regulation 13(3)(b) of ‘transported to the UK from another member state’ required the physical presence of the importer at the moment of importation to establish ‘personal use’. Consideration was given to article 32 of Council Directive (EC) 118/08 (concerning the general arrangements for excise duty and repealing Directive 92/12/EEC). The appeal would be dismissed.
On the established authorities, the court was driven to conclude that the Court of Justice of the European Union had decided that the language of the Directive plainly required that the importer had to personally accompany the goods being imported. Accordingly, the question would be answered in the affirmative. R v Customs and Excise Comrs, ex p EMU Tabac Sarl (Imperial Tobacco Co Ltd intervening): C-296/95  All ER (EC) 402 applied; Customs and Excise Comrs v Newbury  2 All ER 964 applied; Staatssecretaris van Financien v Joustra: C-5/05  All ER (D) 311 (Nov) applied.
The appellant appeared in person; Rupert Jones (instructed by the UK Border Agency) for the respondent.