Memorandum by the Commissioners
of Customs and Excise
1998 (S.I. 1998/202)
1. By letter dated 18 February
1998 the Committee asks the Commissioners to submit a memorandum
on the following point: explain why regulation 6(3) includes subparagraph
(b) (for the purposes of identifying the person liable to pay
the excise duty) given that regulation 4 incorporates articles
203 and 204 of the Community Customs Code (which also identifies
2. Paragraphs (a) and (b) of regulation
6(3) are made in exercise of the power provided by section 1(4)
of the Finance (No.2) Act 1992, c.48 (as, indeed, is the making
of regulations 7 and 8).
Regulation 8 in relation to regulation
6 (as it does in relation to regulation 7, which is similar in
purpose to regulation 6) provides that the regulation 6(3)(b)
person is severally liable as well as being jointly liable with,
amongst others, a customs debtor falling within regulation 6(3)(a).
Where two or more persons are additionally jointly liable for
a debt, the creditor, such as the Commissioners, is not entitled
to obtain from the debtors more than the amount of the debt; and,
as between the debtors, there are rights and obligations of contributions.
Neither article 203 or 204, nor any
other provision of the Community Customs Code, restricts a member
State, such as the United Kingdom, from specifying the class of
person liable for the excise debt (as distinct from the customs
debt) which, by virtue of regulation 4(2), is due and payable
when the customs debt becomes due and payable by virtue of the
provisions of article 203 or 204.
It is a part of the scheme of the
regulations that an excise duty point, ie a requirement to pay
the material UK excise duty, is imposed both on the customs debtor
falling within article 203 or 204 and on a person (falling within
regulation 6(3)(b)) who is not a customs debtor within the terms
of article 204 or 204.
Paragraph 3 provides examples.
3. Regulation 6(3)(b) describes
or specifies a person, additional to the person described by regulation
6(3)(a), who is liable to pay the excise duty required to be paid
by virtue of the occurrence of the excise duty point (assuming
that, in a given case, there is such a person whose conduct amounts
to bringing about or assisting in bringing about the customs debt).
Having regard firstly to article 203
of the Community Customs Code, which specifies a number of customs
duty debtors, it is factually possible for example, in a given
case, that there is no evidence identifying the person who removed
the goods from customs supervision (for which see the first indent
of article 203(3)). (Article 4(3) of the Code defines "Supervision
by the Customs authorities" as meaning ". . . action
taken in general by those authorities with a view to ensuring
that Customs and, where appropriate, other provisions applicable
to goods subject to customs supervision are observed.".)
There may be evidence, however, which
identifies a regulation 6(3)(b) person who, while not falling
within the second, third or fourth indents of article 203(3),
by reason of their conduct, in the period specified by regulation
6(3)(b), nevertheless brought about or assisted in bringing about
the article 203 customs debt.
Thus, to take an example involving
the third indent of article 203(3), a person who helped a person
to acquire or hold the goods in question (without the former person
himself acquiring or holding the goods) would fall within regulation
6(3)(b), where that help constituted conduct amounting to bringing
about or assisting in the bringing about of the customs debt.
Similar examples arise in the case
of article 204.
Thus, having regard to article 204(1)(a)
of the Code and the example of a customs debt being ". .
. incurred through . . . non-fulfilment of one of the obligations
arising, in respect of goods liable to . . . [customs] . . . duties,
from the use of the . . . [external Community transit procedure]
. . .", such as the failure to present the goods at the nominated
office of destination, the customs debtor, having regard to article
204(3), includes the person who is required to fulfil that obligation.
In a given case, that customs debtor
may have been helped by another or others in his failure to discharge
the above-mentioned obligation, ie that other(s) brought about,
or assisted in bringing about, the customs debt through his conduct
in relation to the goods. That other person, or those other persons,
would not be a customs debtor(s) for the purposes of article 204.
Nevertheless, by virtue of regulation 6(3)(b), that person is
liable for the excise debt jointly and severally with the regulation