A NORTH-EAST holidaymaker is to launch a fresh legal challenge to a Customs and Excise decision to seize and destroy nearly 20,000 cigarettes he bought while abroad.

Customs officials stopped Kenneth Boxall and his friend David Ward at Portsmouth as they returned from a ten-day trip to Spain, Portugal and Gibraltar in November 2000.

They seized 19,780 cigarettes and two litres of spirits from Mr Boxall, of Barwick Street, Easington Colliery, County Durham, on the grounds that they were "for commercial use".

Mr Boxall said the goods were for his own personal use.

Giving Mr Boxall permission to challenge the seizure, a judge said Customs could not rely on volume alone to prove commercial use and justify seizure.

Both Mr Boxall and Mr Ward appeared before Portsmouth magistrates in September 2001 in condemnation proceedings, and forfeiture orders were made.

They had been told at an earlier hearing that the goods had already been destroyed.

Unemployed Mr Boxall, aged 49, who smokes 60 cigarettes a day, unsuccessfully appealed against seizure to Portsmouth Crown Court.

But yesterday, a High Court judge ruled he was entitled to another hearing, saying the Crown Court had proceeded on "a wholly erroneous basis", with the onus of proof put on Mr Boxall to show that the cigarettes were for his own personal use.

Customs had brought the case against Mr Boxall relying on the 1992 Excise Duty (Personal Reliefs) Order, which placed the burden of proof on him.

In July 2002, the High Court ruled in a test case involving Hoverspeed and the Commissioners of Customs and Excise that the 1992 Order was incompatible with EU law.

Mr Justice Henriques, sitting in London, ruled that Mr Boxall was entitled to have his case reconsidered, with the correct onus of proof applied, requiring Customs to prove its case.

Rejecting Customs submissions that Mr Boxall did not stand much chance of success, the judge said: ''Volume (of cigarettes) alone does not suffice in these circumstances.

''There are persons who, for their own use, buy tobacco and alcohol in very considerable quantities."