EXCISE LAW is a new speciality of legal practice which is taking off like a rocket.

It has shot to prominence with a recent series of important decisions, some of which seem destined to go further, either within the hierarchy of British courts or before the European Court of Justice.

Yet, on both sides of the profession, scarcely a handful of practitioners exist who can be considered as having any experience in the field.Much of the activity derives from the introduction of the single European market.

This saw the introduction of the principles of the free movement of services, capital, persons and, in particular, goods.

Now the press is full of reports about 'bootleg' importations of goods subject to excise duty.

These are in particular alcoholic beverages and tobacco products, the so-called sin taxes.

(Petro-chemical products and betting and gaming are also major earners of excise duty for the Exchequer, but do not impact on importation in the same way.)Commissioners of Customs and Excise v Carrier [1994] The Times, 7 December is an excellent starting point for consideration of the recent case law.

Here the Divisional Court concluded that Customs and Excise had by subordinate legislation managed to remove from the courts their right to adjudicate on the question of fact which comes into play whenever an importer claims that excise goods are for personal use.

When the single market was introduced, it was provided in art 8 of Dir 92/12 that: 'As regards products acquired by private individuals for their own use and transported by them, the principle governing the internal market lays down that excise duty shall be charged in the member state in which they are acquired.' Art 9 of the same Directive goes on to set out five yardsticks which are to be applied to test whether or not a particular importation is commercial.

The last of these is 'the quantity of the products', and art 9 continues in relation to the application of the quantity criterion 'member states may lay down guide levels, solely as a form of evidence'.

It then sets out minimum quantities as these evidential guide levels, in particular 110 litres of beer and 90 litres of wine.The UK is a high excise duty country, collecting over £20 billion each year.

Excise is not harmonised within the EU, so clearly these goods can be bought more cheaply on the other side of the Channel, and the British Exchequer is keen to stem the loss of this revenue.

In response to the single market obligations, it enacted the Excise Duties (Personal Reliefs) Order 1992, and by this instrument treats the guide levels as maxima.

It also provides 'a person shall be regarded as having imported, held or used excise goods for a commercial purpose if he has in his possession or control goods in excess of the [guide levels]' unless, if required to do so, he satisfies the commissioners to the contrary.So far from applying minimum guide lines, Customs and Excise turned them into absolute maxima and applied heavy sanctions.

These include prosecution for alleged fraudulent evasion of duty, and seizure of goods.

But the main issue of whether the importation was personal cannot be considered because the Divisional Court has decided in Carrier that magistrates may not look behind a determination by Customs and Excise that the goods were being brought in for a commercial purpose.

As matters now stand, the only challenge under domestic jurisdiction would be by judicial review, which involves considerable expense and a protracted wait for a heari ng.

There seems a clear case for a reference to the European Court of Justice on the grounds either that the domestic legislation has produced a result inconsistent with the Directive or that the ousting of the courts' jurisdiction is incompatible with the law of the EU.

There may also be a case to take to the European Court of Human Rights for removal of access to the courts.

None of these points appear to have been raised before the Divisional Court.Another case heard in this country recently was R v Commissioners of Customs and Excise, ex p.

EMU Tabac Sarl [1995] The Times, 31 May.

This established that a scheme -- under which a purchaser of tobacco products which had been sold in another member state of the EU, engaged an agent to transport them on his behalf to the UK for the personal use of the purchaser in an attempt to minimise his liability to excise duty -- was not wrong in principle.

However, the use of an agent could not exempt the goods from excise duty in the UK.A feature of the case was the intervention of the Imperial Tobacco Company.

It was suggested on Imperial's behalf that the purchaser, The Man in Black, was not an agent for the customer in the UK and was either principal or agent for EMU.

The Man in Black, it was said, performed no proper role, and the situation was no different from a Furness v Dawson ([1984] AC 474).

Customs and Excise, however, did not got so far as to allege that the scheme was a sham, and Popplewell J found that while the scheme had been wholly devised in order to minimise the taxpayer's liability to excise duty, it did not have the appearance of an artificially inserted step put in to the arrangement solely for the purpose of tax avoidance.

Someone was obliged to transport the goods if the purchaser himself was not present.But, after considering the provisions of Council Dir 92/12/EEC, the judge concluded that the use of an agent was not within the scope of its provision.

There was a clear distinction between the purchase by an individual personally contemplated by art 8, and a commercial exercise governed by art 10.

Popplewell J considered also the history and purpose of the Directive, and other language versions in addition to the English version.

He considered that the domestic legislation of the UK gave effect to the Directive.

But there remains an argument which was not put to the court.

Some individuals are so physically handicapped that they can under no circumstances travel personally to other countries in order to purchase goods which could form the basis of a personal importation.

If they cannot engage an agent for the purchase and transportation, they must go without.

This appears a discrimination which it would be very difficult to support.

The case may go further and if it ever comes before the European Court of Justice, this seems an argument worth raising.A very interesting decision has appeared recently from the Southwark Crown Court.

It is R v Kelvin Moore [1995] CMLR 654.

An individual who regularly hired lorries and took them across the Channel bought beer in French supermarkets paying low French excise duty.

It was alleged that on return to the UK he sold it in Britain at a price which undercut domestic suppliers, because he had not paid UK excise duty.

He had not imported the beer under suspension of excise duty, but as a consumer for his own use.

The defence sought a reference to the European Court of Justice, but the judge found that the imposition of excise duty on beer in the UK was a feature of its legitimate internal taxation system, and did not accordingly discriminate against foreign, as compared with domestic products.

The principles of free movement and fair competition were found not to have been infringed, and this defence based on EU law failed to bring to an end a prosecution alleging fraudulent evasion of excise duty.

Clearly there is scope for substantial development in this burgeoning area of law.