Burford v Revenue and Customs [2005] UKVAT(Customs) C00205 (22 September 2005)

C00205
	CUSTOMS DUTY — classification — nomenclature — Ford Fairlane 500 Galaxie Skyliner Retractable imported from the USA — whether vehicle a collector’s piece of historical interest classifiable under CN heading 97.05 — no — vehicle found to be correctly classified as a motor car under heading 87.03 — review decision approved by tribunal — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

ANDREW BURFORD	Appellant

- and -

THE COMMISSIONERS FOR
HER MAJESTY’S REVENUE AND CUSTOMS	Respondents

Tribunal:	Michael Johnson (Chairman)
Mohammed Farooq

Sitting in public in Birmingham on 30 June and 7 September 2005 

The Appellant appeared in person

Andrew O’Connor, counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents 

	© CROWN COPYRIGHT 2005

DECISION

1.	The Appellant Mr Burford, who lives in Birstall, Leicester, is the owner of a 1959-model Ford Fairlane 500 Galaxie Skyliner Retractable automobile manufactured in the USA.  He purchased the vehicle in America for U$S22,000 in January 2005, having negotiated to buy it in September 2004.  He had the vehicle shipped to the UK and he now drives and enjoys it here.

2.	Mr Burford had to pay customs duty when he imported the vehicle.  He has appealed against the tariff classification for the vehicle decided and applied by her Majesty’s Revenue and Customs (“Customs”).  Customs say that the vehicle is correctly classified under Combined Nomenclature (“CN”) heading 87.03 of the Commodity Code (“Motor cars and other motor vehicles principally designed for the transport of persons … ”).  Mr Burford disagrees.  He says that the vehicle ought to be classified under CN heading 97.05 (“Collections and collectors’ pieces of zoological, botanical, mineralogical, anatomical, historical, archaeological, palaeontological, ethnographic or numismatic interest”).  If Mr Burford is correct, he stands to save a considerable amount of duty.  

3.	On 18 September 2004 Mr Burford applied to Customs for a binding tariff information (“BTI”) in respect of his vehicle.  BTIs are documents whereby Customs certify how particular goods fall to be classified for purposes of liability to customs duty.  

4.	In Mr Burford’s application he described his vehicle as follows:

“It is a classic car, 1959 Ford Fairlane 500 Galaxie Skyliner (retractable top).  I have enclosed [details of] another I found (sold) which shows the car and also details the production quantities.  I have also consulted the American Ford-related website [details enclosed] who also confirm that production was limited to 12,915 and it is estimated that only about 10 per cent (1,200) survive.  There is also a UK American Car Club who if I join can supply and confirm production numbers.  They know of two for sale in the UK and I guess there is probably only 20 or so in the UK.  This obviously makes it quite a rare car and hopefully you [will] agree to the low rating for tax.  

“I have enclosed a copy of [details of] the actual car proposed along with commission plate to confirm details of the car.”

5.	Mr Burford then gave particulars of the VIN (vehicle identification number), body, trim, date and colour of the vehicle and its value, specified as U$S22,000.

6.	On 29 September 2004 Customs provided a BTI to Mr Burford stating that the vehicle was classified under CN heading 87.03, indicating in the covering letter that the vehicle was excluded from heading 97.05 “on the grounds that there are too many surviving examples”.  The BTI described the goods as follows:

“1959 Ford Fairlane 500 Galaxie Skyliner Retractable VIN no [which was then set out].  Equipped with big block 352 cubic-inch motor with 300 hp.  Left-hand drive.  The roof retracts into the large trunk area of the car.  Missile-shaped rear fenders hide the moving metal work.”

7.	Mr Burford requested a departmental review of this decision.  The review took place and the result was provided to Mr Burford in the shape of a letter dated 23 November 2004.  It is against the outcome of that review that Mr Burford is now appealing.

8.	The review took into account additional information provided to Customs by Mr Burford.  This included a letter dated 5 October 2004 sent to Mr Burford by American Auto Club International in which the President of that Club wrote as follows –

“[Your vehicle] is representative of a very rare ‘Top-of-the-line’ Skyliner Retractable & is unique in that the ‘Retractable Roof’ was specifically designed for just this one Ford product fitted with the 323 cubic-inch V8 engine & was built at the Ford Mahwah assembly plant.

“The fourth digit of the VIN (W) signifies it to be the Special Code of a fully retractable ‘hard top’ specially engineered to allow the complete Metal Roof section to retract, an innovation never to be repeated by any other manufacturer due to the complexity & cost of design.

“Overall production total for this specific model was a mere 14,713 units, information received through my research throughout the USA & The Ford Motor Company confirms that fewer than 1,000 ’59 Skyliner Retractables have survived to this present day with most on display at museums or in private collections.

“I know of only four other examples to be registered in the United Kingdom.

“The 1959 Skyliner 500 is indeed a very rare vehicle & certainly of historical value in the motoring world.”  

9.	The officer of Customs who conducted the review was Mrs Linda Chandler.  She decided that the vehicle was correctly classified under heading 87.03.  She took into account the above information.  

10.	In her review letter, Mrs Chandler first drew attention to the CN, which forms the basis of the UK Customs Duty Tariff by virtue of the annual amendments to EEC Regulation 2658/87 of 23 July 1987.  She explained how the General Interpretative Rules (“GIR”) for the interpretation of the tariff stated, in their pertinent part, that classification is to be determined according to the terms of the headings and any relevant Section or Chapter Notes.  She further explained how there are also Explanatory Notes to the CN (“CNENs”) which, she stated, are considered to be an authoritative source for the interpretation of the CN.

11.	She applied the following process for determining classification.  Following the GIR, she first looked at the CN chapter headings.  These are as mentioned in paragraph 2 above.  Then, she looked at the CNEN dealing with EC policy for the classification of cars within heading 97.05.  

12.	She referred to the decision of the European Court of Justice in Erika Daiber v Hauptzollamt Reutlingen Case 200/84 (Judgment 10 October 1985) (“Daiber”).   The relevant CNEN is (as we find) based upon certain criteria established in Daiber for including motor vehicles within 97.05 as “collectors’ pieces of historical interest”.  According to paragraph 1 of the CNEN, motor vehicles can be included under that heading if they:

•	possess a certain scarcity value;
•	are not normally used for their original purpose;
•	are the subject of special transactions outside the normal trade in similar utility articles;
•	are of high value; and
•	illustrate a significant step in the evolution of human achievements or a period of that evolution.

13.	Paragraph 1 of the CNEN goes on to state that, unless obviously contradicted by the facts, these criteria can be taken to apply to:

•	vehicles in their original state, without substantial changes to the chassis, steering or braking system, engine, etc, at least 30 years old and of a model or type which is no longer in production;
•	all vehicles manufactured before 1950, even if not in running order.

14.	Paragraph 2 of the CNEN states that “collector’s pieces of historical interest” also includes vehicles, regardless of age, that can be proved to have been used in the course of an historic event, or which have been designed, built and used solely for competition and have scored significant sporting successes at prestigious national or international events.  Proof of such matters can be supplied by appropriate documentation, for example, reference books or specialised literature, or by opinions from recognized experts. 

15.	Mrs Chandler observed that the CNEN is in two parts.  Paragraph 1 of the CNEN lists criteria which are applicable to motor vehicles generally.  Paragraph 2 is more specific.  

16.	Looking at paragraph 1 of the CNEN, and comparing it with Daiber, Mrs Chandler considered Mr Burford’s vehicle against the listed criteria.  

17.	She stated that there was evidence that 1,000 Ford Fairlane 500 Galaxie Skyliners remained worldwide, and that only four or five remain in the UK.  We find that here she had regard to the contents of the letter to Mr Burford from the American Auto Club International from which we have quoted above.

18.	She stated that there was no evidence that the vehicle would be used for any other purpose than driving and carrying persons.

19.	She stated that there was no evidence that the vehicle was the subject of a special transaction outside the normal trade.

20.	She stated that, having regard to the Opinion of the Advocate-General in Daiber, the price of U$S22,000 paid for the vehicle did not indicate that it was collectable.  In her view, that was a fairly high price, but the vehicle was not a high value vehicle.

21.	She stated that there was no evidence that the vehicle illustrated a significant step in the evolution of human achievements or a period of evolution for the year 1956 (sic).  We think that here she had in mind the year when the Skyliner’s retractable roof was developed by the Ford Motor Company.

22.	In relation to paragraph 2 of the CNEN, she stated that there was no evidence that the vehicle was used in an historic event, nor was there evidence of a motor-racing history for the vehicle.

23.	She concluded that the vehicle was not a “collector’s piece of historical interest” and was excluded from CN heading 97.05.  She upheld the decision given in the BTI that the vehicle was properly classified under heading 87.03 (full code 870324 90 00).

24.	Mr Burford opened his appeal to this tribunal by showing us a promotional film of the Ford Galaxie Skyliner Retractable model, made at the time when these vehicles were being sold as new.  The film demonstrated the powerful retractable roof in operation, and stressed the engineering sophistication of this feature and the huge amount of time and money that had been poured into its development. 

25.	With the retractable roof erect, the Skyliner Retractable has the appearance of a normal sedan.  However, on command, the trunk of the vehicle opens, hinged at the rear so as to rise backwards, and the entire roof including the rear window lifts up automatically, moves backwards on cleverly-designed “arms”, and disappears into the trunk.  The lid of the trunk then closes over the retracted roof, leaving a roadster-type open vehicle with no sign of a hood.

26.	The process is impressive, even by today’s standards.  We feel that the retractable roof must have represented an automotive achievement at least on a par with any other of the late 1950s.        

27.	Mr Burford showed us photographs of his own vehicle, and a model of the Skyliner Retractable.  He provided us with copies of descriptive “literature” and extracts from books containing details of the history of the Skyliner over the three years for which it was produced (1957 to 1959), particulars of the differing specifications of the Skyliner over those years, pictures of variants of the vehicle, and various price guides.  

28.	The following extract from one of the books cited by Mr Burford indicates what lay behind the development of the retractable roof:

“Of all the weird and wonderful devices which the American auto industry spawned in the flamboyant 1950s, the 1957 Ford Fairlane 500 Skyliner, the first and last mass-produced retractable hardtop, was surely the weirdest.  The paying public loved convertibles, but they didn’t like the difficulties associated with a soft top; they liked a steel roof, but they also loved the sun in their faces and the wind in their hair.  The Ford Motor Company lived as far as possible by the adage ‘give the people what they want’ – and if what the people wanted was a hardtop that hid in the trunk, then that was what they would have.”

29.	Mr Burford also provided us with extracts from Ford Motor Company sales brochures, a copy of an article in “Life” magazine describing the presence of 1959 Fords at the Brussels World Fair, and a quantity of information about specific examples of these cars offered for sale in 2004/05, which Mr Burford had downloaded from the internet.

30.	This last-mentioned information appears to us to show that 1959 Skyliner Retractables are collectable, but that they are not so prized as to command a true collector’s price, even the very best (so-called “mint”) examples being available for under U$S50,000.   Typically, U$S30,000 – 35,000 appears to be the current price of a  good condition 1959 Ford Galaxie Skyliner Retractable in the USA.  However there appear to be a number of these cars available in poor condition for U$S10,000 or less.  We would question whether these cars are worth having.

31.	Mr Burford has received an e-mail from the Ford Motor Company stating that, according to the company’s resources, 12,915 1959 Skyliners were produced.   However, whilst the Standard Catalogue of American Cars 1946-75, edited by Ron Kowalke, confirms a production number of 12,915 Skyliners in 1959 (14,713 Skyliners having been produced in 1958, and 20,766 in 1957), we find that the 1959 production figure included those cars badged as Fairlane 500s released in late 1958, prior to this convertible model being absorbed into the new mid-year Galaxie series.  The Galaxie series lasted only some six months.

32.	The Ford Galaxie Club of America have written to Mr Burford to say that they believe that there are only approximately 42 1959 Ford Galaxie Skyliners that have survived the ravages of time.  The letter states that the air-conditioned models are even rarer, with only six of the 42 surviving vehicles sporting that option.  Skyliner Retractable hardtops are said to be very rare.  But we think that this letter must be regarded with caution, because the sources of the information it contains are unclear, and it may well reflect only such examples of the model as are known to the club.

33.	Mr Burford was the only witness to give oral evidence in support of his appeal.  He told us that he bought his car whilst on holiday in the USA.  He is a UK classic car enthusiast, but fancied owning something different.  He told us that when he filled in his application for a BTI, he was unsure what to include in the form.  He was informed by shippers that cars like his were often imported to the UK as historical vehicles.       

34.	He told us that he did not dispute Daiber.  He described his own vehicle as unrestored and original, exceptional and “breaking all records”.  He submitted that his vehicle was so distinctive that it satisfied the Daiber criteria.

35.	Mr Burford said that the Skyliner Retractable model was an example of a vehicle which possessed historical significance owing to its characteristic retractable hardtop, being an engineering achievement of the period, on the strength of which it was exhibited in Brussels and elsewhere and became famous.   His own vehicle, simply by having been promenaded by way of exhibition and having shown off its retractable roof mechanism, which had happened both in the USA and the UK, should, Mr Burford submitted, be treated as having been used in the course of an historic event for the purposes of paragraph 2 of the CNEN. 

36.	As to the rarity of the vehicle, Mr Burford disputed that the relevant factor was its worldwide scarcity.  He submitted that its evident extreme rarity in the UK was what should count.  The evidence showed, he submitted, that there are very few Galaxie Skyliners left in America – perhaps as few as 42 – and only a handful in the UK.  Mr Burford said that his car was one of the rarest, a 3-speed “Cruisematic”, possessing air conditioning, then extremely rare, and nearly “fully loaded”, with a range of options fitted (power steering, power brakes, V8 engine, etc).

37.	From what we were told by Mr Burford about his Galaxie, whose description we have no hesitation in accepting, it must indeed be a rare car to that specification.  We do not need persuading that it may well be the only Skyliner Retractable in the UK with the particular features described.  

38.	It is however significant, we feel, that such a distinctive example was procured for U$S 22,000.  Mr Burford told us that he paid something of a keen price, and we think that this may be correct.  As we indicate above, he might well have paid U$S30,000 or even more.  He has an agreed insurance valuation for his vehicle of £21,500.  Mr Burford is in the fortunate position of owning an unusual and very desirable classic car which he got for the “right” price.  That is scarcely in dispute.  What is principally in dispute, however, is whether the car is truly a collector’s item.

39.	Mr O’Connor, appearing for Customs, called as his only witness Mr John Mitchell, who is employed as a Customs Officer in the Southend Tariff Classification Centre of Customs (“the Centre”).  Mr Mitchell belongs to a team of officers – currently about 10 strong, but numbering 13 or 14 in Summer 2004 – who consider issues of tariff classification at the Centre.  Mr Mitchell produced an unsworn one page typewritten statement as an aide-memoire, as to the contents of which he spoke when giving oral evidence.

40.	Mr Mitchell told us that quite a large part of the Centre’s work consists of dealing with enquiries for the classification of classic cars under Chapter 97 (about 95 per cent of all enquiries the Centre receives for classification under that particular chapter).  Until August 2004, the Centre frequently issued BTIs classifying cars under heading 97.05 purely on the strength of the often rough-and-ready descriptions of the vehicles of their classic cars given to the Centre by applicants.  For reasons that are unclear to the tribunal, the Centre did not attempt to apply the Daiber criteria.

41.	However the high number of applications for such classification led in due course to the Centre scrutinizing some applications with rather more care.  The first vehicles to receive this scrutiny were old VW camper vans.  (Apparently there is a steady demand for the importation of such vans.)  The Centre moved on to consider applications for less utilitarian classic vehicles, such as Porsches and Jaguars.  Finally, from late August 2004 onwards, the Centre tightened its procedures in respect of all importations of old vehicles.  Thenceforth, emphasis was placed by the Centre on the Daiber criteria.

42.	Mr Burford was affected by this change of policy when he applied for his BTI.  In cross-examining Mr Mitchell, Mr Burford drew Mr Mitchell’s attention to certain older BTIs said to conflict with the new policy, or with the BTI provided in Mr Burford’s case.  Mr Mitchell was able to explain the rationale of some, but not all, of these other BTIs.  We are, of course, not surprised that Mr Mitchell could not fully deal with particular BTIs with whose details he was unfamiliar.  

43.	In respect of those BTIs that are clearly wrong, having regard to the new policy, Customs have embarked on a process of revocation, which is their right.  Mr Mitchell told the tribunal:  “The important point is to try to create a level playing-field”.  By this he meant across the board and throughout the EU Customs area.  Customs have with “hindsight” (Mr Mitchell’s word) published a recent Tariff Notice dealing with the new approach to classification in the case of second-hand cars.

44.	Mr Mitchell explained the Centre’s approach to value and rarity respectively having regard to Daiber.  The Opinion of Advocate-General Lenz in Daiber (followed in this instance by the full Court and therefore providing a useful guide) states –

“Normally second-hand cars fetch a lower price than new cars; the price for a 30 year-old second-hand car ought to be considerably lower than that of a new car.  If, however, such an article is bought at several times the price of a new car, that is an indication that the value thereof is not based on its original intended use but on other criteria.  Those other criteria must normally be the interests of collectors.”

45.	The Centre adopted a yardstick of 3 x £7,000, where £7,000 is taken as the typical lowest price for which a brand-new car can be bought in the UK, and three is taken to be the lowest multiplier that could be described as “several times”.  The resultant figure of £21,000 was, as a rule of practice, rounded down by the Centre to £20,000.  Accordingly, as a general rule, any classic car costing less than £20,000 is not regarded as a collector’s piece.

46.	So far as concerns rarity, the Centre accepted that an item of which less than 100 exist is truly rare.  The existence of several hundred of the items, however, would mean that the item is not so rare.  As a rule of thumb, the Centre hit on the figure of 100 as the watershed – 100 or less of the item, and the rarity criterion would be satisfied; more than 100, and this would not be so.

47.	On the limited information provided to Customs by Mr Burford about his vehicle – which, Mr Mitchell said, was the only information that Customs in practice had a chance to consider – the above tests for classification within CN heading 97.05 would not be satisfied.  Mr Mitchell therefore believed, he told us, that the reviewing officer in this case was right to have upheld the decision giving rise to the BTI in dispute.

48.	For Customs, Mr O’Connor submitted that, in order to be classified under heading 97.05, the vehicle needed to be both a collector’s piece and of historical or ethnographic interest.  He submitted that the criteria in Daiber were cumulative.  In support of this, he cited the decision of the European Court of Justice in Uwe Clees v Hauptzollamt Wuppertal Case C-259/97 (Judgment dated 3 December 1998) at [14] and [24], and he submitted that the comment to the contrary at the end of paragraph 11 of the tribunal decision in Saunders v The Commissioners for her Majesty’s Revenue and Customs (Manchester Tribunal Centre, issued 24 May 2005) was incorrect.              

49.	Mr O’Connor also referred us to the tribunal decision in Barnfinds Ltd v The Commissioners for Her Majesty’s Revenue and Customs (London Tribunal Centre, issued 13 July 2005) (“Barnfinds”) on this point.  The tribunal was clear in that case that the Daiber criteria are cumulative (see the end of paragraph 8 of the decision).  Having considered the authorities, so are we, and we accordingly accept Mr O’Connor’s submission in that regard.

50.	Mr O’Connor then addressed the criteria in turn.  In respect of rarity, he submitted that relative, not absolute, rarity was what was required in law, as concluded in Daiber itself.  Secondly, he submitted, in considering relative rarity the relevant class for cars was their make, their model and in the case of American cars perhaps their year.  Thirdly, he submitted, one must assess rarity as a question of fact.  We agree with these submissions, and we would regard the year to be of importance, as it was clearly treated as such by the American car-buying public of the time.

51.	After reviewing the evidence on rarity, Mr O’Connor next considered the Daiber criterion concerning special transactions outside the normal trade in similar utility articles.  We accept Mr O’Connor’s submission that vehicles such as that in dispute are traded on the ordinary market and not handled by a specialized trade.

52.	Next, Mr O’Connor dealt with the question of the value of the vehicle.  He referred us to the passage in Advocate-General Lenz’s Opinion in Daiber quoted in paragraph 44 above and defended the rule of thumb figure for “high value” of £20,000 adopted by the Centre.  By contrast, Mr O’Connor said, the vehicle in the present case had cost the equivalent of about £12,000.  Mr O’Connor also referred to the recent tribunal decision in Barnfinds on this issue.  

53.	Mr O’Connor did not join issue in respect of the Daiber requirement relating to the non-use of the vehicle for its original purpose.  In our view, it is right to regard the vehicle in dispute as a classic car, not for use as intended when it was new.  It is insured as a classic car with a limited mileage endorsement in the policy. 

54.	Finally, Mr O’Connor submitted that the purpose of CN heading 97.05 was not to allow classic cars to be moved round.  It was intended to cover collectors’ pieces which evidence a significant step in the evolution of human achievements or illustrate a period of that evolution, so being of historical or ethnographic interest, as stated by the Court in Daiber.  He invited us to follow the decision in Barnfinds, in which, so he submitted, the tribunal had correctly interpreted the law.

55.	For his part, Mr Burford submitted that each of the criteria in Daiber was satisfied.  He reiterated that his vehicle was very rare, and said that a high price – being 6½ times its price when new – had been paid by him to buy it.  

56.	He said that although his vehicle was manufactured since 1950, it was over 30 years old and in its original state.  It was an unmolested vehicle.  Accordingly it was a vehicle to which the criteria should be taken to apply.

57.	Mr Burford invited us to have regard to paragraph 2 as well as paragraph 1 of the CNEN.  

58.	Finally, Mr Burford complained about the inconsistency of treatment received in respect of the BTI provided to him, which conflicted with the premise of BTIs provided to other importers.  He said that he was a victim of an arbitrary change of policy by Customs.

59.	We decide that Customs were not only entitled to change their policy, they were bound to do so, once they had formed the view that they were not issuing BTIs in accordance with the law as established following Daiber.  Not to have changed policy would have amounted to perpetuating the incorrect previous state of affairs, in the knowledge that it was wrong to do so.  Customs cannot therefore be criticized for the change, nor for their current policy of progressively revoking BTIs which should never have been issued in the first place.  

60.	We can however understand Mr Burford’s point of view as to the change, and as will appear, we have decided to reflect this when it comes to costs.    

61.	With regard to the review under appeal, we think that Mrs Chandler was correct to approach matters in the way she did.  Following the GIR, she identified the need to interpret the relevant CN headings in the light of the CNEN applicable to heading 97.05.  It is not disputed that that CNEN takes the form it does having regard to the decision of the Court in Daiber.  We regard our function as being to examine the evidence supportive or otherwise of these criteria, which we find to have been correctly identified by Mrs Chandler, and then either to endorse her decision or not, as the case may be.

62.	Dealing firstly with paragraph 2 of the CNEN, we cannot agree with Mr Burford that the use made of his vehicle connotes that it has been used in the course of an historic event.  We of course accept that it will have provided pleasure to many to see the vehicle driven or displayed – all the more so if the owner gave spectators a demonstration of its retractable roof.   But we have not been shown evidence of any historic event in which this particular vehicle was used.

63.	Turning to paragraph 1 of the CNEN, Mr Burford is correct that his vehicle is an unmolested vehicle more than 30 years old of a model or type no longer in production.  The preconditions of that paragraph can therefore be taken as applying, in so far as they are not obviously contradicted by the facts.  

64.	Retractable hardtops are a feature of a number of vehicles currently manufactured, but a mass-produced retractable hardtop was revolutionary in the 1950s and we are prepared to agree that it illustrated a significant step in the evolution of human achievements, the concept of which is emulated today.  However it is correct to say that this achievement applies to all Skyliner Retractable hardtops produced between 1957 and 1959, not just Galaxie Skyliner Retractables.

65.	In our view, 1959 Galaxie Skyliner Retractables are particularly desirable Fords which represent the culmination of the Skyliner design.  Considered by make, model and year, these Galaxies are special vehicles. There are sufficiently few of them, we think, and they are sufficiently distinctive, for them to satisfy the scarcity criterion, as discussed in Daiber, being in their own right a sub-class of those Fords possessing retractable roofs.  

66.	We think that Mr Burford is incorrect that rarity falls to be determined by reference to rarity in the UK.  For purposes of importations from abroad, it is the scarcity overall – ie worldwide rarity – that is relevant.  That would be the perspective at the time of importation, the question of the number of similar vehicles in the UK being just a fluctuating and accordingly inconsequential part of an overall picture.  

67.	Weighing the evidence that we have received, we accept as determinative on the balance of probabilities what is said in the American Auto Club International’s letter dated 5 October 2004, to the effect that fewer than 1,000 1959 Skyliner Retractables have survived to the present day.  In our view, Mrs Chandler was right to rely upon that evidence in her review.  But what she failed to do was to give sufficient weight to the judgment of the Court in Daiber at [18] that mass-produced articles which currently exist only in a limited number, so that they cannot be easily obtained, satisfy the scarcity requirement.   

68.	In this regard, we disagree with the construction placed on the letter of 5 October 2004 by Mrs Chandler.  In our view, she did not properly take account of the statement in the letter that the surviving examples of 1959 Skyliner Retractables are mostly on display in museums or private collections.  That means that these vehicles are of a kind that collectors prize.  A good example of these cars, if one is lucky enough to find one, is more likely than not to go into a collection or museum, because that is where the surviving vehicles “mostly” are.   Out of many thousand originally produced, only a few hundred of these Retractables at most, “rough” cars as well as good examples, are likely to be available, assuming as we do that the letter is correct.

69.	We therefore think that 1959 Skyliner Retractables are an example of a rare classic car that could conceivably be covered by CN 97.05, if other relevant criteria were to apply.  We have found that Galaxie Retractables, as distinct from previously manufactured Skyliners, were only manufactured for about six months in 1959, and we consider that they form a distinct class of Ford.  Mr Burford’s car is one of this rare class of vehicles.      

70.	However we do not think that 1959 Skyliner Retractables have been shown to be the subject of special transactions outside the normal trade in similar utility articles, because the evidence that we have shows that these vehicles are bought and sold in every respect like the general run of second-hand vehicles.  We have not identified a single instance where a Skyliner Retractable has been bought or sold in a manner which is indicative of its interest to a collector.

71.	Because we are of the view, as mentioned above, that the requirements of paragraph 1 of the CNEN are cumulative, this suffices to dispose of the appeal in favour of Customs.  

72.	But we are also unpersuaded that Mr Burford’s vehicle is of high value.  It may be the case, as Mr Burford says, that he paid over six times for the vehicle compared with what it cost when new, but the decline in the value of the dollar invalidates that comparison.  A better comparison, in our view, is with the value of other vehicles that have survived from the 1950s.   

73.	Because 1959 Skyliner Galaxie Retractables are rare and a pleasure to own, it is unsurprising for Mr Burford to have had to pay U$S22,000 to acquire a good one.  But this must, we feel, be because the value of these vehicles reflects not their historic interest but rather their rarity.  We agree with Advocate-General Lenz that one would expect a truly collectable vehicle to command a price much greater than this – indeed, several times the price of a new car, as he indicated in his Opinion in Daiber.

74.	What we needed to see in this case in order that the appeal might be allowed was evidence that Mr Burford’s vehicle had an additional value over and above its undoubted value as a rare and highly desirable classic car.  We have not been presented with such evidence, and so, notwithstanding the skill and enthusiasm demonstrated by Mr Burford in conducting his appeal, we are constrained to uphold Mrs Chandler’s review as correct.  The appeal must be dismissed.

75.	Mr Burford feels aggrieved, having regard in particular to Customs’ change of policy in August 2004.  In view of that feature of this case, we are not minded to make an award of costs against Mr Burford, even though he has lost his appeal.  We accordingly make no order as to costs.

MICHAEL JOHNSON
CHAIRMAN
Release Date: 2 NOVEMBER 2005
MAN/2004/7043