A BUSINESSMAN who was caught illegally using red diesel in one of his work vehicles will have to pay £31.21 after successfully appealing a £4,577 excise duty assessment.

David Ainsworth, who had already paid a £539 on-the-spot fine, took the commissioners for Her Majesty’s Revenue and Customs to tribunal after claiming the assessment was unfair.

The assessment related to an incident in Burnley in April 2014 when Mr Ainsworth was pulled over by police while driving a Ford Transit Tipper and diverted to a HMRC mobile road fuel testing unit.

The tribunal heard that the fuel was a reddish colour and tested positive for the presence of red diesel.

Red diesel is dyed gas oil for agricultural or construction vehicles such as tractors, excavators, cranes and boats. Red diesel carries a significantly reduced tax levy compared to un-dyed diesel fuel used in ordinary road vehicles.

When questioned at the scene Mr Ainsworth told HMRC officer John Mawdsley that ‘he had not put red diesel in the tank, but that an employee of his may have done so to save money’. Mr Ainsworth also said that he used red diesel to fuel a jet wash and machines that he used for his businesses of laying concrete groundwork. When asked what other vehicles he owned Mr Ainsowrth said a Ford Transit Connect van, a Nissan minibus and an Audi A3, all of which were diesel engined, and a SAAB that used petrol.

In December 2014 HMRC officer Kenneth Goodliffe wrote to Mr Ainsworth requesting books and records for the tipper and any other vehicles operated by him.

The following month Mr Ainsworth received a letter saying an assessment of £5,863 had been made for duty on the rebate, which covered the period of January 2011 to April 2014. Mr Goodliffe said the assessment had been made on the basis that, on the balance of probabilities, red diesel had been used for all mileage of the vehicles owned or used by Mr Ainsworth.

In April 2015 HMRC received a letter from Mr Ainsworth, which included fuel receipts and vehicle mileage details. On the back of that the assessment was recalculated to £4,577.

But tribunal Judge Richard Thomas accepted Mr Ainsworth’s evidence that the red diesel had been put into his work vehicle by an employee without his knowledge on no more than 10 to 12 occasions and exceeded no more than 150 litres. The assessment figure was reduced to £70.21, before being reduced further to £31.21 on account the tank was nearly empty when the van was stopped by HMRC.