Punjab

Ludhiana

CC/16/342

Kulbinder Singh - Complainant(s)

Versus

6 Food Theater - Opp.Party(s)

Vinod Kumar Adv.

07 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 342 of 04.05.2016

Date of Decision            :   07.11.2016

 

Kulbinder Singh son of Mohan Singh, resident of village Lalton Khurd, P.O.Lalton Kalan, Near Baba Sahidi, Ludhiana.

….. Complainant

                                                         Versus

 

1.District 6 Food Theatre, Silver Arc Mall, 4^th Floor, Gurdev Nagar, Ferozepur road, Ludhiana through its M.D./Director/Manager/Prop./Partner/Auth.Signatory.

2.Tariq Ahmed, Assistant Restaurant Manager, District 6 Food Theatre, Silver Arc Mall, 4^th Floor, Gurdev Nagar, Ferozepur road, Ludhiana.

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS.VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :        Sh.Vinod Kumar, Advocate    

For OP1                         :        Ex-parte

For OP2                         :        Complaint already dismissed as withdrawn

                                                vide  order dated 8.8.2016.

 

PER G.K.DHIR, PRESIDENT

 

1.                As per the case of the complainant, on 9.3.2016 in the evening, he along with his friends visited restaurant of OP and placed order for purchase of Chicken Bullet Chilli. Bill No.6247 dated 9.3.2016 for total amount of Rs.1261/- including service charge/service tax @5.6%, Swachh Bharat Cess @0.2% and VAT @14.30% was issued. Complainant after receipt of the bill, found that VAT was charged on all the items, whereas as per his knowledge, VAT can be charged only on food items. There was single food item namely Chicken Bullet Chilli of worth of Rs.545/- excluding discount. Service tax was charged after including the amount of service charge in the cost of items. When this fact brought to the notice of officials of OP with request to clarify the details of the bill, then they did not pay heed. Officials of OP claimed that they will charge the amount as per their own desire because nobody has dared to take any action against them. Complainant made payment of the bill amount through credit card. Officials of OP on insistence disclosed that they had noted down the complaint of the complainant and they will resolve the matter within few days and they will intimate the complainant. By pleading deficiency in service and adoption of unfair trade practice on the part of OP, prayer made for refund of excess charged amount with interest. Compensation for mental harassment and humiliation of Rs.1 lac and litigation expenses of Rs.20,000/- more claimed.

2.                OP1 served through Manager Sh.Amit Kumar, but none turned up and as such, OP1 was proceeded against ex-parte vide orders dated 18.7.2016. Sh.Vinod Kumar, Advocate for complainant suffered statement on 8.8.2016 for withdrawal of complaint against OP2 and as such, complaint against OP2 has been withdrawn.

3.                Complainant in ex-parte evidence tendered his affidavit Ex.CA along with documents Ex.C1 & Ex.C2 and then closed the ex-parte evidence.

4.                Written arguments not submitted by the complainant, but oral arguments alone addressed and those were heard. Records gone through carefully.

5.                After going through ratio of case titled as M/s Hotel East Park and another vs. Union of India and others-2014(2)ECS(83)(Chattisgarh High Court), it is made out that provisions of Section 66E(i) of Finance Act, 1994 containing statutory provisions relating to service tax has been held valid. Bone of contention remains that charging of service tax @5.6% on the total bill amount is illegal in view of section 66E(i) of Finance Act, 1994 read with rule 2C of the Service Tax(Determination of Value) Rules 2006. Said rule provides that Central Excise Department will charge the service tax of 40% on the bill value of the food and drinks. So, certainly submissions advanced by counsel for the complainant has force that service tax chargeable @40% on the bill value of food and drinks.

6.                Perusal of bill Ex.C1 reveals that the complainant purchased Teachers Highland 30 ML drink along with Chilli Bullet Chicken. Total price of these purchased articles was Rs.1476/-, but after discount of Rs.465/-, Rs.1010/- was charged as the price of food and drinks. Service tax was charged @10% and VAT @14.30%. Dispute in that respect not raised. However, charging of service tax @5.6% on the total bill amount of Rs.1010/- is under challenge.

7.                Section 66E(i) of Finance Act, 1994 read with Rule 2C of the Service Tax(Determination of Value) Rules 2006 provides that Central Excise Department will charge service tax of 40% on the bill value of the food and drinks and if that be the position, then service tax could have been charged @40% on the bill amount i.e.Rs.1010/-. 5.6% of Rs.404/- comes to Rs.22.62P and as such, certainly there is excess charging of Rs.40/- as service tax. That excess charging of Rs.40/- is an act of unfair trade practice and as such, the complainant is entitled for refund of this amount of Rs.40/- from OP1 because food and drinks articles were purchased by the complainant from Op1. In view of payment of this excess service tax, complainant suffered mental agony and harassment and as such, he is entitled for compensation in that respect and also to litigation expenses. Practice of charging service tax on whole of the bill amount on food and drinks items is illegal as per ratio of above cited case. No other point argued.

8.                As a sequel of the above discussion, complaint ex-parte allowed with direction to OP1 to refund excess charged amount of Rs.40/- and he will also pay compensation for mental harassment and agony of Rs.5000/-(Rupees Five thousand only), but litigation expenses of Rs.2000/-(Rupees Two thousand only) to the complainant. Complaint against OP2 has already been dismissed as withdrawn.   Payment of these amounts will be made by OP1 to the complainant within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules.

9.                File be indexed and consigned to record room.

 

                             (Vinod Bala)                                       (G.K. Dhir)

                                                Member                                                President

Announced in Open Forum                                                          Dated:07.11.2016

Gurpreet Sharma.