DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.224 of 2018

                                                Date of institution:  20.02.2018                                                  Date of decision   :  14.12.2018

Balwinder Singh resident of House No.179, Street No.3, Dashmesh Colony, Village and PO Balongi, District Mohali, Punjab.

…….Complainant

Versus

Indian Terrain Fashions Limited, F-39, First Floor, VR Punjab Mall, NH 21 Mohali Kharar Road, District Mohali 160055 through its authorised representative.

                                                                 ……..Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri Sukhdev Singh proxy counsel for Shri Vikram Siongh, counsel for  complainant.

                Ms. Simran, counsel for the OP.

Order by :-  Shri G.K. Dhir, President.

Order

                  Complainant being allured by sale advertisement of flat discount upto 50%, after visiting premises of OP purchased Men’s Trouser Style CORE-WALTER FF KANSAS NAVY 87 cm vide invoice dated 27.01.2018 by paying rice of Rs.1133/- including GST of amount of Rs.53.97 N.P. charged @ 5%. 40% discount was offered on the above said product having MRP of Rs.1,799/- (inclusive of all taxes) and after discount, total price was Rs.1,079.40 N.P. However, GST amount of Rs.53.97 N.P. charged extra in illegal manner by adopting unfair trade practice and that is why this complaint for direction to OP to stop unfair trade practice referred above; refund Rs.53.97 N.P. with interest @ 12% per annum w.e.f. 27.01.2018 till payment and to pay compensation of Rs.50,000/- on account of mental harassment and agony. Litigation expenses of Rs.20,000/- more claimed.

2.             OP in reply admitted of its being a reputed brand throughout India. No amount in excess of MRP has been charged.  Promotions at the store were of 20%, 40% and upto 50% discount offers, but depending upon the merchandise and apparel. Mention of those offers was made in campaign, display boards, banners placed inside the show room and also the tent cards placed on the billing counter clearly visible to the customers. Seasonal sale discount offers were meant for promoting business. In the advertisements of OP, it was clearly reflected that VAT/GST charges will be extra applicable. Complainant after being well aware of these terms and conditions of sale of the product, purchased the same and as such there is no deficiency in service on part of OP. Complainant could have sought clarification regarding charges at the billing counter before generation of bill, but it was not done so and now complaint based on afterthought version has been presented for causing damage to the image, goodwill and reputation of OP. Amount of GST collected from complainant has been deposited with Taxation Authorities. Appeal against the orders dated 04.01.2017 passed by Hon’ble National Consumer Disputes Redressal Commission in case of M/s. Aero Club (Woodland) Vs. Rakesh Sharma,  is pending before Hon’ble Supreme Court of India and as such present complaint deserves dismissal. Admittedly product in question was having MRP of Rs.1,799/- and discount @ 40% of amount of Rs.719.60 N.P.  was permissible, but GST @ 5% of amount of Rs.53.97 N.P. is charged. Other averments of the complaint denied.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-3 and thereafter closed evidence. On the other hand, counsel for the OP tendered in evidence affidavit Ex.OP-1/1 of Shri Ravi B.S.G, Company Secretary alongwith document Ex.OP-1 and thereafter closed evidence. 

4.             Written arguments not submitted by any of the parties. Oral arguments heard and records gone through.

5.             From perusal of pleadings of parties and the submitted affidavits as well as tag Ex.C-2, it is made out that MRP of the product purchased by complainant was Rs.1,799/- inclusive of all taxes. It is admitted by OP in reply that discount of Rs.719.60 N.P. @ 40% was given and GST of amount of Rs.53.97 N.P. @ 5% charged on such sale affected through invoice Ex.C-1 dated 27.01.2018.  So it is obvious that GST has been charged on the discounted price, despite the fact that MRP was inclusive of all taxes.  That practice of charging VAT on the discounted price having MRP inclusive of all taxes has been deprecated by Hon’ble National Consumer Disputes Redressal Commission, New Delhi  in case titled as M/s Aero Club (Wood Land) through its Manager Vs. Rakesh Sharma bearing Revision Petition No.3477 of 2016 decided on 04.01.2017 as well as in case bearing First Appeal No.136 of 2017 titled as M/s Aero Club Vs. Ravinder Singh Dhanju decided on 23.05.2017 by Hon’ble State Consumer Disputes Redressal Commission, UT Chandigarh.  Ratio of both these cases fully applicable to the facts of the present case. So practice of charging GST on the discounted price of the product having MRP inclusive of all taxes in this case certainly is unfair trade practice.

6.             It is contended by counsel for OP that decision given by Hon’ble National Consumer Disputes Redressal Commission in case of M/s Aero Club (Wood Land) through its Manager Vs. Rakesh Sharma (supra) has been challenged in Hon’ble Supreme Court by filing SLP which has been admitted and as such this complaint deserves to be dismissed. Provisions of Order 41 Rule 5 CPC provide that mere filing of appeal does not amount to stay of operation of orders under challenge in appeal and as such on the same analogy it has to be held that on mere filing of SLP, it cannot be inferred that operation of the law laid down by Hon’ble National Consumer Disputes Redressal Commission in above said case of M/s Aero Club (Wood Land) through its Manager Vs. Rakesh Sharma (supra)  has been stayed. So long as operation of the law laid down by Hon’ble National Consumer Disputes Redressal Commission not stayed, same to prevail and as such dismissal of complaint is not at all warranted just due to pendency of SLP in the Hon’ble Supreme Court of India.

7.             It is also contended by counsel for OP that product in question was sold to complainant in seasonal sale by clearly disclosing that VAT/GST extra as applicable will be chargeable because display boards/tent cards etc. were put on the cash counter as well as inside the show room at various places as evidenced through photographic depiction produced on record as Ex.OP-1. Even if these display boards in photographic depiction of Ex.OP-1 are there, but it is not clear therefrom  as to whether these displays in fact were there inside the show room on 27.01.2018, the date of purchase by complainant or not. OP has produced affidavit Ex.OP-1/1 of Shri Ravi B.S.G. only without any proof that these displays were there inside the show room on the date of purchase made by complainant. Perusal of this affidavit Ex.OP-1/ reveal that this Ravi B.S.G. is posted in Chennai office as Company Secretary and there is nothing on record to suggest that this deponent visited the show room of the  OP at Mohali on the date of purchase of product in question by complainant for finding that the displays actually were there. So contents of affidavit Ex.OP-1/1 are based on hearsay version only. So submission made through affidavit Ex.OP-1/1 of deponent cannot be said to be of a person who saw the display boards with his own eyes. So, reliance on this affidavit Ex.OP-1/1 alone cannot be placed for finding that actually display boards referred as Ex.OP-1 were there inside the show room at Mohali on the date of purchase of product affected by complainant. However, complainant has produced tag Ex.C-2 for establishing that MRP was inclusive of all taxes and as such inference is obvious that GST has been charged extra on the discounted price without disclosing the complainant about charging of extra GST.

8.             Even if GST to be charged from the buyer, despite that the terms of such practice can be changed by mutually arrived at contract through which the buyer may undertake liability to pay GST on the discounted price of a product having MRP inclusive of all taxes. It was OP itself who professed through Ex.C-2 that MRP will be inclusive of all taxes and as such on the discounted price, OP by such undertaking bound to pay GST or other taxes. Complainant on representation of OP of discount offer on product having MRP inclusive of all taxes, purchased the product in question from OP and as such now OP estopped by its act and conduct from claiming that GST to be charged extra on the discounted price, especially when law on the subject referred above is to the contrary.

9.             As a sequel of above discussion, the complaint is allowed with direction to OP to refund excess charged amount of Rs.53.97 N.P. with interest @ 6% per annum w.e.f. 27.01.2018 till payment. Compensation for mental agony and harassment of Rs.2,000/- and litigation expenses of Rs.2,000/- more allowed in favour of complainant and against  OP.  Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. Certified copies be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

December 14, 2018.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member