<br /> O R D E R <br /> <br /> <br /> SRI. D.KRISHNAPPA., PRESIDENT., <br /> <br /> The grievance of the complainant against the Op in brief is that he had obtained loan of Rs.1.32 lakh from the OP on 10-07-2008 repayable with interest @ of 16.5% per annum in 48 equal monthly installments of Rs.3774.81ps each, besides processing charges etc. The Op while billing him for EMI from July 2008 to December 2008 billed him with the EMI amounts as stated above. But thereafter that is from January 2009 the OP started billing him with higher EMI amount than fixed by adding service tax imposed by Government of India. That for 7 months from January 2009 to July 2009 he has paid Rs.1191/- towards service tax. Service tax was applicable even at the time of availment of loan, but was not billed separately by OP that is though service tax was in existence even during July 2008. Op has absorbed service tax expenses and collected EMI’s is originally fixed and agreed. But the OP has enhanced the EMI amount from Rs.3774/81ps by adding service tax to it and thereby has enchanced the EMI’s amount for which he is not liable to pay. That he even sought the intravention of banking ombudsman for Karnataka in this regard who received reply from the OP but rejected his request to exempt him or for a direction to the Op to confine to receive original EMI amount and has rejected his claim. Thus has prayed for a direction to the OP to refund Rs.1191/- being the service tax recovered from him from January 2009 to July 2009 and also to direct the bank not to collect the service tax thereafter and also to reimburse the expenditure he incurred in the complaint filed before banking ombudsman and towards cost of this complaint.<br /> <br /> OP has appeared through his advocate and filed version contending that the compliant is not maintainable. That this complaint is filed for wrongful gain and stated that when loan was sanctioned to the complainant EMI’s were fixed by calculating interest and also service tax as prevailing on the date of advancing the loan. But while fixing EMI service tax was excluded at the beginning as they where bearing the service tax component. Accordingly complainant was paying EMI at Rs.3774/81ps which was not inclusive of service tax. That they borne service tax from July 2008 to December 2008 but thereafter as per the policy decision taken they passed on the charges to the beneficiary which was intimated to the customers informing the complainant that service tax wherever is applicable has to be borne by customers with effect from January 2009 which was in accordance with the regulation passed by Ministry of Finance. Charging with service tax by them is part of a statutory duty as per clarification in this regard dated 09-07-2001. Therefore merely because they had borne the service tax for a period of six months it will not exempt the complainant in future also as such they as a good gesture had borne the service tax for six months but later on they are collecting it which is legitimate collection and therefore contending that collection of statutory tax do not amounts to deficiency and has prayed for dismissal of the complaint. <br /> <br /> In the course of enquiry into the complaint, the complainant and authorized signatory of OP have filed affidavit evidence reproducing what they have stated in their respective compliant and version. Complainant alongwith the compliant has produced a copy of accounts summary which contain fixed EMI’s which also contain service tax at 12.36% which is to be borne by the customer/customers, copy of an order of banking ombudsman, a copy of clarification regarding payment of service tax. Op has produced a copy of terms and conditions of the loan fixing of EMI’s which also evidences liability of a customer to pay service tax with a copy of terms and conditions empowering the Op to impose service tax on the borrowers. Heard the counsel for both the parties and perused the records. <br /> <br /> On the above materials, following points for determination arise.<br /> <br /> 1. Whether the complainant proves that the OP has caused deficiency in his service by collecting service tax from January 2009 to July 2009? <br /> <br /> 2. To what relief the complainant is entitled to ?<br /> <br /> Our findings are as under:-<br /> <br /> Point No: 1 in the negative.<br /> Point No: 2:see the final order.<br /> <br /> REASONS: ANSWER POINT No:1:: As evident from the contentions of the rival parties there is no dispute between them with regard to the quantum of loan sanctioned, rate of interest, rate of service tax and conditions of repayment except a dispute between them regarding collection of service tax from the complainant by the OP with effect from January 2009. Therefore it is not necessary to go through other details of transaction and confine ourselves to small difference that prevails between the parties. <br /> <br /> The complainant himself in his complaint and affidavit evidence has admitted that charging of service tax was applicable and existed even at the time of availment of loan that is during July 2008, <br /> but contended that it was not billed separately by OP. It is further stated by him EMI’s were fixed at Rs.3774.81ps each and he was liable to pay so much through each EMI. It is further stated by him that the OP did not charge him for service tax from July 2008 till December 2008 for six months and the bank collected the regular EMI amounts. But started billing higher EMI’s by adding service tax from January 2009 for a period of 7 months till July 2009 and thereby stated that collection of service tax for that period is deficient and therefore prayed for refund of that tax amounting Rs.1191/-. <br /> <br /> As against this contention of the complainant OP in the version and also affidavit evidence admitted that they did not charge the complainant for service tax from July 2008 to December 2008 and they were bearing that tax liability. It is further stated by them as a good gesture they were bearing that service tax as such they were not collecting it from the complainant. It is further stated by them that EMI’s fixed at Rs.3774/81ps was not inclusive of service tax. That they thereafter as per the policy decision of the bank and also in accordance with the regulation passed by the Ministry of Finance on the issue and as per the clarification regarding service tax and banking and other financial services dated 09-07-2001 they started charging the complainant with service tax and thereby they added service tax to the EMI’s amount and they are collecting it without altering the previous EMI amount fixed and they further contended that collection of service tax is a statutory charge is the statutory duty they are discharging. The complainant has not disputed this contention of the Op and has not controverted it. Therefore considering the fact that the OP had discretion at the initial stage either to levy the service tax on the customer or not exercised it in favour of the complainant and borne the tax liability by themselves for a period of six months. But because of the change of the policy they fashioned on the liability on the complainant which is in our view is the statutory duty and that liability cannot be escaped by the complainant. Therefore the complainant cannot claim the same immunity from paying the service tax even after January 2009 as such the complainant is not in our view is entitled to refund that service tax amounting Rs.1191/-. Further the complainant is also not entitled for reimbursement of the expenditure he incurred in the proceeding before banking ombudsman and cost of this complaint. The compliant in our view is devoid of merits is liable to be dismissed. As the result we answer point NO:1 in the negative and pass the following order. <br /> <br /> O R D E R<br /> <br /> Complaint is dismissed. Parties to bear their own costs. <br />