Uflex Europe Limited v The Commissioners for HMRC

For the late-presentation exception in Article 97n(2), the relevant inquiry is whether exceptional circumstances caused the failure to submit the proof of origin by the deadline. The exception is not a general fairness provision and does not turn on the eventual financial effect of the delay.

Guidance on exceptional circumstances is properly drawn from closely analogous customs time-limit authorities. A trader’s mistaken tariff classification is not exceptional where correct classification is an ordinary task confronting traders in that business. The fact that no net customs revenue would have been lost, or that a later tribunal decision confirmed a different classification, does not alter the cause of the earlier delay.

The appellant imported woven polypropylene pet-food bags between 2014 and 2018. It initially used an incorrect tariff heading which carried a non-preferential zero rate of duty. It therefore did not submit Generalised Scheme of Preferences certificates of origin within their ten-month validity period.

The First-tier Tribunal held that the bags fell under the appellant’s preferred heading, but upheld HMRC’s assessments because the certificates were late and the delay was not due to exceptional circumstances. The appellant appealed only that latter conclusion.

The Upper Tribunal admitted the appellant’s new pure points of law, then considered whether the First-tier Tribunal had erred in construing or applying the exception in Article 97n(2) of EEC Commission Regulation 2454/93.

1. Appeal dismissed. The First-tier Tribunal made no error of law and its conclusion was reasonably available on the facts.

2. Article 97n(2) of EEC Commission Regulation 2454/93 permits late presentation of a proof of origin only where the failure to submit it by the deadline is due to exceptional circumstances. The provision is not a general equity or fairness clause. The inquiry concerns the reason for the delay, rather than its eventual effect.

3. The First-tier Tribunal was entitled to use Firma Sohl & Sohlke v Hauptzollampt Bremen C-48/98 as closely analogous guidance on a customs time limit. Circumstances may be exceptional where they put a trader in an exceptional position compared with other traders carrying on the same activity, and are not events normally confronting such a trader in the course of business.

4. The other CJEU authorities concerned distinct remission provisions framed as general equitable reliefs and involving negligence or deception. They did not require the First-tier Tribunal to import a balancing exercise, or a less demanding test, into Article 97n(2).

5. The cause of the late certificates was the appellant’s mistaken tariff classification. Correct classification is an ordinary task for an importer. The First-tier Tribunal could rationally conclude that this was not an exceptional circumstance. A later determination of the correct classification, the absence of net revenue loss, and the fact that the appellant was not seeking remission did not bear on the cause of the delay.

6. The Tribunal also exercised its discretion to admit the new arguments. They were pure points of law, required no additional evidence, and HMRC had adequate notice and opportunity to answer them.

• Upper Tribunal (Tax and Chancery Chamber): dismissed the appeal in [2025] UKUT 57 (TCC).
• First-tier Tribunal (Tax Chamber): in a decision released on 3 May 2023, held that the goods fell within the appellant’s proposed tariff heading but rejected the claim that late certificates of origin were excused by exceptional circumstances. The assessments were upheld.