Continental Wine and Food Limited v Her Majesty's Revenue & Customs

Facts

Continental Wine and Food Limited manufactured "Bali Tropical Alcoholic Drink with Caribbean Rum & Coconut flavour", a beverage made by fortifying a fermented made-wine base derived from concentrated grape juice with neutral spirit and rum, and adding rum and coconut flavouring. Launched in 1998 at 17% abv and treated as a made-wine within CN heading 2206, the drink was reformulated in 2002 to 21% abv (the Reformulation I formulation) so as to take advantage of an extra-statutory concession waiving the mixing proportion condition in sections 57 and 58 of the Alcoholic Liquor Duties Act 1979. At the suggestion of Mr Lamb, an officer of Customs, the appellant applied for a binding tariff information; the BTI, valid from 1 November 2002, classified the product under CN heading 2208 as a spirituous beverage. Mr Lamb accordingly rejected a claim for repayment of £21,002.73 of excise duty and assessed a further £31,528.73, a decision confirmed on review by Mrs Birnie on 1 April 2003. A further review by Mr Palmer was not completed after the appellant refused to supply samples for organoleptic testing on Customs' terms, and an application to the Tribunal to compel samples was dismissed, so Mrs Birnie's decision was deemed confirmed under section 15(2) of the Finance Act 1994. The company appealed.