BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No. 330/2006 Filed on 22/12/2006

Dated: 15..11..2010

Complainant:

Unnikrishnan Nair, S/o Janardhanan Nair, T.C.1/1824(1), IAS Colony Lane, Vattiyoorkavu – P.O., Thiruvananthapuram.

(By Advs.Emmanuel Chathenchira & Elizabeth Chathenchira)

Opposite parties:

1. M/s. Anjeneya Motors, N.H.Bye Pass Road, Kuzhivila, Thiruvananthapuram. Represented by Managing Director, Biju Anirudhan.

    

   (By Adv. R. Jagadish Kumar)

    

2. M/s. General Motor India Private Ltd., Global Business Park, Tower A, 6^th Floor, Mehrauli Gurgaon Road, Gurgaon – 122 002. Represented by Vice President Marketing, Amit Dutta.

    

(By Adv. V. Shankar)

This O.P having been heard on 31..08..2010, the Forum on 15..11..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant purchased a new 'Chevrolet Tavera' vehicle from the 1^st opposite party on 6/7/2006 manufactured by the 2^nd opposite party that he purchased the vehicle for the purpose of Taxi, that at the time of purchasing 1^st opposite party collected Rs.7,42,245/- as the cost of the vehicle, in addition to that 1^st opposite party collected Rs.11,500/- as the cost of State Taxi Permit, that due to latches, negligence and administrative delay of the 1^st opposite party the Tourist permit availed only on 28/9/2006, that as per the present Rules of Government of India for promoting Tourism the Government is giving Excise Duty Refund for Tourist vehicle through the manufacturer within 90 days from the date of purchase, that complainant received necessary records from the 1^st opposite party on 29/9/2006 and the same was immediately returned after notarisation of the same on 30/9/2006, but the 1^st opposite party failed to submit the Excise Duty Refund within the time through the manufacturer, that the EDR submitted by the 2^nd opposite party returned on 13/10/2006 by the Government of India as a time barred case and the same was communicated to the complainant on 27/10/2006 through the 1^st opposite party. It is submitted by the complainant that due to the deficiency in service of the opposite parties complainant lost Rs. 37,000/-, that complainant issued a legal notice to opposite parties. Opposite paties received the said notice, but no payment was made by them nor settled the issue. Hence this complaint to direct opposite parties to pay Rs. 37,000/- as Excise Duty Refund, Rs. 36,000/- towards EMI for three months without using the vehicle and pay compensation of Rs. 1,00,000/- and cost of Rs. 2,000/-.

2. 1^st opposite party has not turned up despite the service of notice, nor filed version. Hence 1^st opposite party remains ex-parte.

3. 2^nd opposite party filed version contending inter alia that complaint is not maintainable either in law or on facts, that the entire dispute is confined between complainant and 1^st opposite party, that 2^nd opposite party is the manufacturer in question, no allegation of any nature whatsoever has been made against them, that 1^st opposite party is the dealer from whom the vehicle was purchased, that the dealer is not an agent of the 2^nd opposite party, that 2^nd opposite party is not involved in the process whereby the dealer subsequently sells the vehicle to the final consumer, 2^nd opposite party has been unnecessarily dragged in this case, excise refund was available to the complainant after paying the full price of the Car, that subject to the terms and conditions contained in the Notification No. 3/2001 of March 2001, that as per Clause 40(c) of the Notification a certificate from the requisite authority is required to be submitted stating to the effect that the vehicle in question stands registered exclusively as a taxi and that the said certificate should be submitted within a maximum period of three months from the date of clearance of the vehicle from the factory of the manufacturer, that the said certificate stating that the vehicle stood registered as a taxi needed to be forwarded by the complainant to the manufacturer and manufacturer who is required to submit the registration certificate for the purposes of obtaining the Excise rebate in question, that this opposite party never received any such registration certificate from the complainant, that 2^nd opposite party can play an effective role only if the complainant had submitted necessary documents within the time stipulated by the competent authority, the act of forwarding the registration certificate to the 2^nd opposite party by the dealer at the request of the complainant for which the complainant did not pay any charges is not a service within the meaning of the Act. Hence 2^nd opposite prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether there is deficiency in service on the part of opposite parties?

2. Whether complainant is entitled for refund of Excise duty?

3. Whether complainant is entitled to get Rs. 36,000/- remitted towards EMI due to non-use of the vehicle for three months?

4. Whether complainant is entitled to compensation and cost?

In support of the complaint, complainant has filed affidavit and has marked Exts. P1 to P11. Complainant has been cross examined by 2^nd opposite party. In rebuttal, 2^nd opposite party has not filed affidavit or any documents.

4. Points (i) to (iii) : Admittedly, complainant purchased the aforesaid vehicle from the 1^st opposite party on 6/7/2006. It has been the case of the complainant that the vehicle was purchased for the purpose of Taxi. It has also been the case of the complainant that he got Tourist permit only on 28/9/2006, that there was a delay of nearly three months for getting the permit. It has also been the case of the complainant that he has every right to get Rs.37,000/- towards the refund of Excise duty, that after receiving necessary records from the 1^st opposite party on 29/9/2006 the same was returned after notarisation on 30/9/2006, but 1^st opposite party failed to submit the EDR within the time through the manufacturer. It has been contended by the complainant that 2^nd opposite party returned the EDR on 13/10/2006 as a time barred case and the same is communicated to the complainant on 27/10/2006. Complainant alleges deficiency in service on the part of the opposite parties and it is due to the fault of the opposite parties he could not use the vehicle for 3 months. 1^st opposite party never filed version, 2^nd opposite party filed version contending that there is no deficiency in service on the part of 2^nd opposite party that the dispute is between the dealer and the complainant and 2^nd opposite party has no concern or involvement since the dealer and 2^nd opposite party act on principal to principal basis and the dealer is not an agent of the 2^nd opposite party for any purposes whatsoever. Complainant has furnished 11 documents. Ext. P1 is the copy of the receipt dated 24/6/2006 issued by the 1^st opposite party for Rs. 50,000/-. Ext. P1(a) is the copy of the receipt dated 3/7/2006 for Rs. 6,92,245/- issued by Anjaneya Motors. Ext. P2 is the copy of Certificate issued by Regional Transport Authority stating that one Chevrolet Tavera has been registered for use solely as Taxi. On perusal of Ext. P2 it is seen that the class of vehicle as All India Tourist Taxi, date of registration on 6/7/2006, registration No: KL-01/AN 4221. Ext. P3 is the copy of Registration Certificate wherein also Class of vehicle is described as All India Tourist Taxi. Ext. P4 is the copy of Form 47 Authorisation Tourist Permit. As per Ext. P4 validity of authorisation is from 29/09/2006 28/09/2007. On perusal of Ext. P5 it is seen that Permit No.is 1/247812006. Ext. P6 is the letter dated 13/10/2006 issued by Co-ordinator of the 2^nd opposite party to 1^st opposite party stating that the claim is a time barred case, hence cannot be processed. Ext. P7 is the copy of the Advocate notice addressed to opposite parties. Ext. P8 is the copy of postal receipts. Ext.P9 is the copy of the acknowledgement cards. Ext. P10 is the copy of Proforma Invoice issued by Anjaneya Motors. Ext. P11 is the copy of the Driving Licence. In his cross examaination complainant has deposed that he has obtained Taxi permit through 1^st opposite party's agent and as per the direction of the 1^st opposite party he has entrusted application, R.C Book and required documents for EDR for refund of Excise Duty to 1^st opposite party. It is deposed by the complainant in his cross examination that 1^st opposite party required him to submit the same within 3 months and he has submitted the same within time. Hon'ble National Commission in Assistant Commissioner, Central Excise Vs. Rajesh Bhatty & Antr. (2003) CTJ 716 has elaborately discussed the Central Excise Act especially Section 11(b). As per Section 11(b) any person claiming refund of any duty of Excise may make application for refund of such duty to Assistant Commissioner of Central Excise or Deputy Commissioner, Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidences including documents referred to Section 12(a)............. Hon'ble National Commission observed that there is no dispute that when a motor vehicle is registered as a Taxi there would be exemption from payment of Duty of Excise to a certain extent. The Central Excise Act is a complete code. An application for refund of the Excise duty under Section 11(B) has to be made within the prescribed period. It is the Central Excise Officer, mentioned in that section, who is solely authorised to decide the claim for refund, no other Court or Tribunal or Authority is empowered to go into the question of Excise Duty. The application for Refund of Excise Duty can be made only by the person from whom it has been collected. In fact, it would be the manufacturer, who would have to pay the duty of Excise in the first instance at the time of clearance of the goods. It will be therefore, he who would have to apply for refund of the duty of Excise under Section 11(B) of Central Excise Act with such details and documents as may be prescribed. In this case, it is the say of the complainant that he got his vehicle registered as Taxi and submitted all the required papers for getting exemption of duty of Excise to the 1^st opposite party, who forward the same to the manufacturer and the rejection of the claim was intimated to the complainant. National Commission observed that manufacturer is the only person entitled to seek refund of Excise Duty and pay the same to the complainant. As per Ext. P6 letter issued by 2^nd opposite party to 1^st opposite party claim is time barred, hence cannot be processed. According to National Commission even if the Order rejecting the application seeking refund of Excise Duty was allegedly on frivalous ground the said Order under Section 35 of the Central Excise Act was appeallable and Appeal ought to be filed by the manufacturer, who was the only person entitled to seek refund and then pay the same to the complainant. Herein, as per Ext. P6 the application is seen not forwarded to the Excise Tax Authority; on the ground that the claim is time barred. According to complainant, he got the relevant records from the 1^st opposite party on 28/9/2006 and it is due to the latches and negligence and administrative delay of the 1^st opposite party the Tourist permit availed only on 28/9/2006. 1^st opposite party has not filed version nor contested the case nor cross examined the complainant. Hence the affidavit filed by the complainant in lieu of chief examaination against the 1^st opposite party remains uncontroverted. The action of the 1^st opposite party would amount to deficiency in service. In view of the above and evidence available on records we are of the considered opinion that complainant cannot recover the said amount by any other legal means other than realising the same from the opposite parties. Further in his cross examination complainant has deposed that he has forward application to the 2^nd opposite party through the 1^st opposite party immediately after receiving the relevant documents from the 1^st opposite party, ie., 10 days prior to the date of limitation. As per Section 11(B) (i) any person claiming the refund of any duty of Excise may make an application for refund of such duty to Assistant Commissioner of Central Excise before the expiry of one year from the relevant date, in such form and manner as may be prescribed and application shall be accompanied by relevant documents. On perusal of Ext. P6 it is seen that 2^nd opposite party received the said application from the 1^st opposite party. It is not known whether 2^nd opposite party manufacturer, had forward the same to the Excise Authority concerned. But as per Ext. P3 Registration Certificate the manufacturing date of the vehicle is March 2006, as such the application for refund is to be forwarded within one year from the relevant date. It is not seen disclosed from Ext. P6 whether 2^nd opposite party has forwarded the application for refund of Excise duty to the concerned authority. 2^nd opposite party has not filed affidavit to substantiate their contention in the version. As such 2^nd opposite party cannot escape from the liability to compensate the complainant. The action of the 2^nd opposite party would also amount to deficiency in service.

In the result, complaint is partly allowed. Opposite parties 1 & 2 shall pay the complainant a sum of Rs. 37,000/- towards Excise Duty Refund along with a compensation of Rs. 5,000/-. The amount of Rs.37,000/- shall carry interest at 9% if not paid within 2 months from the date of receipt of this order. Parties shall bear and suffer their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15^th day of November, 2010.

G. SIVAPRASAD : PRESIDENT

BEENA KUMARI .A : MEMBER

ad. S.K. SREELA : MEMBER

C.C.No.330/2006

APPENDIX

1. Complainant's witness:

PW1 : Unnikrishnan Nair

II. Complainant's documents:

P1 : Copy of receipt dated 24/6/2006

P1(a) : " " 30/7/2006

P2 : " certificate issued by Regional Transport Authority

P3 : " certificate of Registration

P4 : " tourist permit

P5 : " All India Tourist Vehicle Certificate issued by Motor Vehicle Department

P6 : " letter dated 13/10/2006

P7 : " the Advocate notice addressed to opposite parties

P8 : " postal receipts

P9 : " the acknowledgement

P10 : " Proforma Invoice issued by Anjaneya Motors

P11 : " the Driving licence

III. Opposite parties' witness : NIL

IV. Opposite parties' Documents : NIL

PRESIDENT