Joint Committee on Statutory Instruments Twenty-Fifth Report


Memorandum by the Commissioners of Customs and Excise

REGULATIONS 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 the debtors).


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 6(3)(a) person.

February 1998

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