DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.203 of 2017
Date of institution: 16.03.2017 Date of decision : 10.01.2018
Jasmeet Singh Mokha son of Late Swaran Singh Mokha, resident of House No.410, First Floor, Phase 3A, Mohali.
…….Complainant
Vs
Domino’s unit of Jubilant Foodworks Limited, SCO 123, Phase 3B2, Main Market, Mohali through its Incharge/MD/Manager.
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member.
Present: Shri Raghubir Singh, counsel for complainant.
Shri Arun Kumar, counsel for the OP.
Order by :- Shri G.K. Dhir, President.
Order
OP is running its business under the name and style of Domino’s unit of Jubilant Foodworks Limited at Mohali at the address given in the complaint. On 07.03.2017 complainant placed order for delivery of pizza through telephonic call at outlet of the OP and thereafter retail invoice bill for amount of Rs.944/- consisting of Rs.112.26 N.P. as VAT @ 14.3% and Rs.47.10 N.P. as service tax @ 6% was issued. Complainant raised objection relating to charging of service tax because the same cannot be legally collected. OP was informed by complainant about the clarification given by Department of Service Tax and Excise Division to the effect that rendering of pick up or home delivery service of sold food by restaurants is transaction of sale and not of service due to which service tax cannot be levied. However, OP claimed that it is bound to follow instructions of the management for charging service tax from every customer. Complainant was disclosed that if service tax is not paid, then he will not be allowed to get pizza and that is why complainant had to pay Rs.944/-. Due to unfair trade practice adopted by OP in charging service tax on pizza, complainant claims to have suffered mental tension and agony and that is why complaint for seeking direction to OP to furnish any such notification or direction issued by any taxation authority favouring direction to charge service tax on items, which are delivered or picked up. Refund of extra charged amount of Rs.47.10 N.P. with interest, compensation for mental harassment and agony of Rs.4.00 lakhs and litigation expenses of Rs.75,000/- claimed. Record details of sales made after 13.08.2015 even sought.
2. In reply filed by OP, it is claimed that complainant has not approached the Forum with clean hands; complainant has no cause of action; this Forum has no jurisdiction because of indirect challenge to statue of Finance Act, 1994. Purchase of pizza on order and issue of bill through which VAT and service tax charged are admitted facts. No objection was ever raised by complainant with respect to applicability of taxes. Reference of letter/clarification issued by worthy Deputy Commissioner bearing No.ST-20/STD/Misc./Sevottam/62/ 12/4693 dated 13.08.2015 is made for claiming that the same has been withdrawn as void ab initio by further orders passed by worthy Deputy Commissioner vide letter No.ST-20/STD/Misc./Sevottam/62/12/6118 dated 09.09.2015. That clarification was given with the approval of worthy Additional Commissioner and as such it is claimed that no case of unfair trade practice is made out. Complainant has never raised concern relating to charging of service tax on home delivery with any official of OP.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 and C-2 and thereafter closed evidence.
4. On the other hand, learned counsel for the OP tendered in evidence affidavit Ex.OP-1/1 of Navdeep Choudhary, authorised representative of the OP alongwith documents Ex.OP-1 and OP-2 and thereafter closed evidence.
5. Written arguments in this case submitted by the OP. Oral arguments heard and records gone through.
6. Purchase of pizza through telephonic order is an admitted fact. It is in pursuance of this telephonic order that pizza was delivered to complainant at the place mentioned by him after charging Rs.944/- including Rs.47.10 N.P. as service tax, is a fact established by contents of invoice Ex.C-1. No denial of this fact made by the OP. Bone of contention remains as to whether the service tax can be charged by OP in such like cases or not.
7. Letter Ex.C-2 dated 13.08.2015 issued by office of worthy Deputy Commissioner Central Excise and Service Tax Division, Sector 17-A, Chandigarh is produced on record by complainant to establish that service tax cannot be levied in respect of transaction involving pick up or home delivery of food sold by the restaurant because dominant nature of transaction remains sale and not service. However, this letter Ex.C-2 was subsequently withdrawn by worthy Deputy Commissioner Central Excise and Service Tax Division, Sector 17-A, Chandigarh by himself by issue of letter Ex.OP-2 dated 09.09.2015. Therefore, after withdrawal of letter Ex.C-2 through letter Ex.OP-2 by one and the same authority, it remains within the domain of this Forum and other authorities to ascertain as to whether service tax is chargeable on transaction involving pick up or home delivery of food sold by restaurant like OP or not.
8. In case of PVR Limited Vs. Ekta Jindal, I (2010) CPJ 98 (Hon’ble Delhi State Consumer Disputes Redressal Commission), it has been held that when sale of food articles made on cinema counter, by charging price in excess of price printed on the articles, then that practice cannot be termed as an unfair trade practice, more so when the sale on such counters falls in the category of sale in a restaurant. In case of Kamat Hotels Vs. Pralhad N. Padalikar and Anr., 2012 (5) AIIMR (JS) 51 (Hon’ble Maharashtra State Consumer Disputes Redressal Commission), it has been held that if there is no nexus with the quality, quantity, purity or service or any other special warranties in respect of a product for which the price charged at an ordinary shop, is less than that of the price charged by a hotel, then charging of extra price by hotel amounts to unfair trade practice. Reliance in this case was placed on case of Federation of Hotels and Restaurants Association of India Vs. Union of India, AIR 2007 Delhi (137). Perusal of ratio of this case of Federation of Hotels and Restaurants Association of India Vs. Union of India (supra) reveals that a hotelier or restaurateur provides many services in addition to supply of food and as such charging of excess price by him for such additional rendered services is appropriate. Such hotelier/restaurateur provides furniture and furnishings, linen, crockery and cutlery and even sometimes additional facility of music or of floor dancing facility and as such a person purchasing item from such hotelier/restaurateur at somewhat higher rate will not get protection of Consumer Protection Act. Ratio of this case is fully applicable to the facts of the present case because here service tax charged in respect of providing extra service of home delivery through telephonic call. As and when home delivery is made by a restaurant like OP, then certainly such concern bound to bear expenses of engaging an employee as well as vehicle, so as to render home delivery service. In view of this additional facility provided by the OP to complainant, act of charging service tax cannot be treated as an unfair trade practice. There is close nexus between additional rendered service of home delivery with the charging of extra price and as such act of charging service tax is not an unfair trade practice. So order for refund of charged service tax cannot be passed and nor any direction needs be issued to OP to supply details of sales made by him after 13.08.2015. So this complaint being misconceived merits dismissal.
9. As a sequel of above discussion, the complaint is dismissed without any order as to costs. Certified copies of the order be supplied to the parties free of cost and thereafter the file be indexed and consigned to the record room.
Announced
January 11, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
