The UT dismissed Walkers Snack Foods Limited’s appeal against the FTT’s decision that Sensations Poppadoms are “similar to [a crisp]” and “made from the potato”.

Giselle McGowan acted for HMRC.

The Appellant had been granted permission to appeal on eight grounds but only pursued six. All six were rejected by the UT.

Ground 1: The FTT’s conclusion that the term “the potato” included potato granules was reasonable.

Ground 2: The FTT’s conclusion that the products were made from “the potato”, in circumstances where the potato granule and potato starch content was c.40%, was reasonable.

Grounds 4, 5, 6 and 8: The FTT’s determination that the products were similar to potato crisps was a reasonable one on the basis of all the facts. Whilst it may be possible to disagree with the weight given by the FTT to individual elements of its multifactorial assessment, the overall assessment was well within the bounds of reasonable decisions that the FTT was entitled to reach.

• Whilst the FTT appeared to have incorrectly treated the reference to “poppadoms” in the labelling of the product as a brand or trade name (like Monster Munch or Hula Hoops), the question for the FTT was whether the products were similar to potato crisps, not whether they were poppadoms. Accordingly, the customary name of the product was of limited relevance. The fact the product might customarily be called a poppadom did not, in principle, prevent it from also being similar to a potato crisp.
• It was not unreasonable for the FTT to conclude that the flavours of the product were not a distinguishing feature given the diverse range of flavours of potato crisps.
• It was not unreasonable for the FTT to focus on taste and texture when considering the relevance of the inclusion of gram flour as those were the features most likely to distinguish the products from crisps.
• Whilst poppadoms may be a distinct product from potato crisps, the fact that the products may be similar to poppadoms did not prevent them from being similar to crisps.

The judgment can be read in full here.