Haryana

Panchkula

CC/212/2015

ABHINAV AGGARWAL - Complainant(s)

Versus

GAZAB INDIA - Opp.Party(s)

COMPLAINANT IN PERSON.

24 Feb 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                         

Consumer Complaint No	:	212 of 2015
Date of Institution	:	05.10.2015
Date of Decision	:	24.02.2016

 

Abhinav Aggarwal s/o Sh.Arun Aggarwal, age 27 yrs. R/o Flat No.50, Transit Flats, Haryana Govt. Officers, Sector 12-A, Panchkula.

                                                                                      ….Complainant

Versus

 

1.       Gazab India, SCO 218-219, Sector 14, Main Market, Panchkula through its Manager/Managing Director.

2.       # 365, Industrial Area, Phase-I, Panchkula through its Manager/Managing Director.

                                                                                     ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.S.P.Attri, Member.

 

For the Parties:     Complainant in person. 

Mr.Yoginder Verma, Adv., for the Ops.

ORDER

(Dharam Pal, President)

1. The complaint has been filed by Abhinav Aggarwal-complainant under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that he had placed an order with the OP No.1 for home delivery on 23.09.2015 from Gazab India vide order No.8, bill No.000008 against payment of Rs.630/- vide COD (cash on delivery). The Op No.1 promised that it would deliver the order within time but the Op No.1 delayed the same due to which the complainant had to eat cold food. After going through the bill, the complainant came to know that the Op No.1 charged service tax @ 5.6% from the complainant which is not according to the laws prescribed by the Central Excise & Service Tax Division. Next day i.e. on 24.09.2015, the complainant requested the Op No.1 for refund of his money which deducted as service tax. The complainant also sent an email on 24.09.2015 to the Op No.1 but to no avail. The complainant approached the Ops and requested many times for refund of amount but the Ops refused for the same. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops appeared before this Forum and filed written statement by taking some preliminary objection and submitted that the OPs No.1 charged the service tax as per directions of the Central Excise & Service Tax Department (Central Govt. of India). It is submitted that the Ops did not use the same for its own business or benefits and they paid the same to the Service Tax Department. It is submitted that the restaurant service has been made taxable to service tax w.e.f. 01.05.2011 and the same is covered by Section 65(105) (zzzzv) of the Finance Act, 1994 read with notification No.1/2006-S.T. dated 01.03.2006 as amended by notification No.34/2011 - S.T. Tax 25.04.2011. It is submitted that there is no notification, section or rule under the Finance Act, 1994 which exempt take away and home delivery of foods from the service tax. It is submitted that the Ops had charged the service tax on home delivery food sale under authority of law. It is submitted that the delivery boy of Op No.1 has delivered the food within time to the complainant. It is submitted that the service tax @ 5.6% had been charged by the ops on the food as per the Govt. directions/notification and as per law. It is submitted that the complainant never approached the Ops. It is submitted that the Ops company is a reputed company and it had not cheated ever or broken faith of customers. Thus, there is no deficiency in service and untrade practice on the part of OPs and prayed for dismissal of the complaint.
3. Both the parties have adduced their evidence. The complainant has tendered in evidence affidavit Annexure C-A alongwith documents Annexure C-1 to C-6 and closed the evidence. Counsel for the Ops has tendered in evidence affidavit Annexure R-A alongwith documents Annexure R-1 to R-3 and closed the evidence.
4. We have heard the complainant appearing in person and learned counsel for the Ops and have also perused the record carefully and minutely.
5. The complainant by way of this complaint has stressed that the Ops have charged service tax @ 5.6 % from him which is against the law prescribed by Central Excise & Service Tax Division. He has drawn the attention of this Forum towards letter dated 13.08.2015 issued by Office of Deputy Commissioner Central Excise & Service Tax Division, Chandigarh (Annexure C4) wherein it has been mentioned that the Service Tax can be levied if there is an element of service such as air conditioning & personalized hospitality etc. is attached.  The Ops have placed on file copy of letter dated 09.09.2015 issued by Office of Deputy Commissioner Central Excise & Service Tax Division, Chandigarh (Annexure R3) and argued that the letter dated 13.08.2015 has been withdrawn by the Government and also drawn the attention of this Forum towards letter dated 07.12.2015 wherein it has been mentioned that the Service Tax is applicable on the pick-up and Home Delivery services also.  On this point reliance can be taken from case law decided by Hon’ble State Commission, UT, Chandigarh in First Appeal No.166 of 2015 decided on 14.08.2015 wherein by relying the law settled by Hon’ble Delhi High Court it has been held that restaurants/eateries can levy service charges from the consumers and the order passed by the Forum was set aside. It has been further held that the Government has not issued any such notification that levy of such service charge by restaurants/eateries is illegal.  Learned counsel for the Ops has rightly argued that the Ops can charge the service on home delivery food sale under authority of law and the same has been charged as per Government directions/instructions.  
6. For the reasons recorded above and keeping in view the law laid down by Hon’ble State Commission, UT, Chandigarh in First Appeal No.166 of 2015, we are of the opinion that the complaint is meritless and the same is dismissed. A copy of this order be sent to the parties free of costs and file be consigned to record room after due compliance.  

 

Announced

24.02.2016        S.P.ATTRI         ANITA KAPOOR        DHARAM PAL

                           MEMBER         MEMBER                     PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

    

                                 

                                                         DHARAM PAL

                                                          PRESIDENT