Supreme Court to hand down judgment in customs duty appeal next week

The Supreme Court will hand down judgment in FMX Food Merchants Import Export Co Ltd (Respondent) v Commissioners for Her Majesty’s Revenue and Customs (Appellant), UKSC 2018/0218 next Wednesday.

The issue in the case, which is on appeal from the Court of Appeal Civil Division, is:

Whether customs duty is irrecoverable in circumstances where communication of the customs debt occurred three years after the debt was incurred, in light of the time limit imposed by Article 221(3) of the “Customs Code” (Regulation EEC/2913/92, as amended by Regulation EC/2700/2000).

This appeal concerns the imposition by the appellant (HMRC) of customs duty on various importations of garlic into the UK made by the respondent (FMX) between 2003 and January 2004.

The goods were falsely declared to be of Cambodian origin. The garlic was in fact of Chinese origin and thus subject to a quota payment and to anti-dumping duty. HMRC issued a post-clearance demand on 1 April 2011 for customs duty on these importations in the sum of £503,577.63.

Prior to the issue of the demand, the First-Tier Tribunal (FTT) dismissed an appeal by FMX against a post-clearance demand issued on 22 February 2007 for duty in respect of similar imports by FMX that occurred after January 2004.

However, the FTT allowed an appeal from the demand on the basis that it was communicated to FMX after the expiry of a three-year time limit specified by Article 221(3) of the Customs Code, and that Article 221(4) could not be relied upon to override that time limit.

The FTT decision was overturned by the Upper Tribunal (UT) which decided that the communication of the Demand was not time-barred. The Court of Appeal allowed a further appeal, deciding that the time limit under Article 221(3) of the Customs Code applied. HMRC now appeals to the Supreme Court.

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