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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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I wrongly entered the green lane at Gatwick after returning

Customer Question

I wrongly entered the green lane at Gatwick after returning from Eygpt with 1160 cigarettes. I was not offered the chance to pay the duty and my 200 allowance was not returned. Border Force has written to me after I complained and they state that section 78 (4) CEMA includes my allowance. I have looked at the said section and I believe they are wrong. What is your angle on this please.


Mick Warren
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.
Are you asking if their view is right?
Customer: replied 3 years ago.

Yes.

Expert:  Jo C. replied 3 years ago.
Why do ou think it doesn't apply? CEMA s78(4) just refers to forfeiture.
Customer: replied 3 years ago.

FOR JOMO 1972 Border Force wrote to me saying 'as you had more than your allowance you should have declared your excise goods by entering a red channel or red point and paid the duty. By enetering the green channel you made a false declaration ,an offence under sectio 78 (1) of CEMA, and the goods (including your allowance) were liable to forfiture under section 78 (4). Section 78 (4) states anything chargeable with any duty or tax shall be liable to forfiture. The 200 allowance is tax free and therefore should not be subject to the above. When I questioned this at the airport I was told they had had an internal memo telling the staff to do this! They refused to show this to me.

Expert:  Jo C. replied 3 years ago.
I'll need to research this for a while. I'm fairly sure they do have that power but don't know offhand the legislation.
Expert:  Jo C. replied 3 years ago.
OK.

I've had a look at the section.

Whether they have had a memo round or not is a non issue. The issue is whether they are compliant with the law. If the memo instructs them to do something unlawful then thats their problem.

Obviously S78[4] is open to interpretation. The section says

(4)Any thing chargeable with any duty or tax which is found concealed, or is not declared, and any thing which is being taken into or out of the United Kingdom contrary to any prohibition or restriction for the time being in force with respect thereto under or by virtue of any enactment, shall be liable to forfeiture.

One interpretation of the first part of that subsection is indeed that it doesn't apply because duty is not due on this item.

However, I'm afraid it would seem to me that they could argue this was taken into the UK contrary to S78[1] as you didn't declare and so it can be forfeited under the second limb.

The section is worded distinctive so that either limb one or limb two is sufficient.

Its obviously open to interpretation and you may convince a court but it would seem its not as cut and dry as perhaps you thought.

Sorry if thats bad news.

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