HMRC secures Excise Directive victory in the Court of Appeal – Brendan McGurk acts for HMRC

18 Mar 2020

The Court of Appeal has today handed down a judgment that considers the relationship between Articles 33 and 37 of Directive 2008/118/EC – the Excise Directive. The Appellant had contended that excisable goods would cease to be so having been destroyed following seizure and forfeiture by UK Customs authorities. Specifically, it argued that the destruction of goods at the hands of authorities following seizure engaged Article 37 which materially provides that: “in the event of the total destruction or irretrievable loss of the excise goods during their transport in a Member State other than the Member State in which they were released for consumption, as a result of the actual nature of the goods, or unforeseeable circumstances, or force majeure, or as a consequence of authorisation by the competent authorities of that Member State, the excise duty shall not be chargeable in that Member State.” The destruction of those goods by customs authorities would, it was contended, retrospectively preclude any duty point arising under Article 33 of the Directive, a precondition for the levying of duty. The Court of Appeal has comprehensively rejected that contention finding that the purpose of the proviso in Article 37 was to authorise the destruction of goods which are no longer saleable and on which it would not be appropriate to levy excise duty. The Appellant’s argument would, in effect, have incentivised smuggling since there would be relatively little downside to seizure where the party in question would not be liable for duty or any penalty absent a duty point having been reached. The Court of Appeal’s ruling confirms that that is not the law.

Brendan McGurk acted for HMRC and the judgment is here.