Complainant by filing this complainant has submitted that for his self employment and to earn his livelihood he had been running a M/Taxi for last few years and within the passage of time the said taxi became old and as per Government of India Rules the same had been replaced with the new one and for that replacing he purchased one new Hindustan Ambassador 1500-OC DSL/1500 CC L. GBS III model on 15.06.2009 from M/s Austin Distributor Pvt. Ltd. and that new car was in exchange of old one and he was directed to pay a sum of Rs.3,16,329/- in cash after adjusting the valuation of the old car to the tune of Rs.45,000/- as exchange value and total value of the new car was Rs.3,61,329/-.  But after deduction of exchange value it was fixed Rs.3,16,329/- and as per Central Excise Rules if a car is used as M/Taxi then a refund is applicable on account of taxi cab by the manufacturer and that clause is also noted in the pro-forma invoice of the Austin Distributor to the effect that refund is applicable on account of Taxi Cab would be made by furnishing certificate from the proper registering authority.

          Subsequently, the vehicle was registered as usual by the Registering Authority on 16.09.2009 and under the heading vehicle particulars, enumerating all particulars of the car writes under items number, the vehicle class to be M/Taxi and also on the body of the certificate in the R.H.S. in bold and capital letter.  Further on receiving the certificate dated 19.07.2010 complainant submitted the same along with other papers on 30.08.2010 well within the stipulated period of 2 months for the refund of the refundable money as per rules in M/Taxi.  But the op company issued letter under Ref-EXC/Taxi dated 05.09.2010 and handed over to the complainant on 20.09.2010 with the comments “Registration Certificate is received after expiry of the date prescribed for its submission” and for that reason op company refused to refund the said amount.  Thereafter complainant represented the matter on several times for reconsideration and refund but no result and on being harassed by the op, complainant lodged this complaint against the op before the Directorate of CA & FBP, Govt. of West Bengal for redressal on 15.03.2011.  But the mediation was attended by the complainant and also by Shri M. Chatterjee on behalf of op no.1 and op no.3 but matter failed and in the above circumstances complainant has prayed for refund of the sum of Rs.22,000/- from the ops jointly and severally as consumer of the ops.

          On the other hand op no.3 the Chief Administration Officer Excise Section has submitted that alleged controversy/issue involves non-receipt of differential excise duty rebate and the service rendered therefore shall not constitute service as defined within the meaning of the Consumer Protection Act, 1986 and further submitted that the present op no.3 did not sell the said vehicle so op no.3 has submitted that they are not responsible and liable and under any circumstances they cannot be made parties as there is or was no relationship with the service provider and consumer.

          Further it was submitted that as per notification issued by the Central Excise Authorities, Govt. of India such beneficiaries is required to submit relevant registration certificate papers pertaining to a car as documentary proof that the said car had been registered as taxi with the Central Excise Authorities, Govt. of India, within the statutory time limit of three months, or such extended period not exceeding a further period of three months as the said Deputy Comissioner of Central Excise may allow, from the date of clearance of the said car from the factory of the manufacturer i.e. op no.3 herein, otherwise such claim for refund of differential excise duty shall become time barred and the person shall not be entitled to refund of the said differential excise duty rebate and op no.3 emphatically stated that the car had been cleared from the factory of op no.3 on 25.08.2009 whereas the registration certificate papers were received by this op no.3 on 30.08.2010 from the complainant through its dealer after lapse of more than one year and the matter had become time barred long back and it is evident from the copy of registration certificate paper that the same was notarized on 12.07.2010 by Smt Parinush Banu, Notary, Govt. of West Bengal although the car was cleared from the factory of op no.3 on 25.08.2009 and in any event op no.3 are not responsible/liable for that and so same should be rejected.

          Whereas op no.1 & 2 by filing a written version has submitted that they did not sell any Hindusthan Ambassador Car as claimed and complainant has failed to prove that fact.  Further they have stated that no Hindusthan Ambassador car was sold to the complainant on 15.06.2009 and denied all other allegations and in the circumstances, the complaint should be dismissed.

                                              Decision with reasons

          In fact in this case after studying the entire materials on record and the version of the ops including the allegation of the complainant, we have gathered that op nos. 1 & 2 have tried to convey before this Forum that they never sold away any car to the complainant.  But we have failed to understand why such a defence taken by the op nos. 1 & 2 when truth is that Austin Distributor Pvt. Ltd. sold away car and delivered it on 28.08.2009 to the complainant to Pronath Kr. Das and Model of the Ambassador is One Hind-Ambassador 1500CC DSL/Grand BS-III along with tools and others having Engine No.6EPHJ093756 and said car was insured under Bajaj Alliance and from the said receipt of Austin Distributor Pvt. Ltd. it is clear that as per order No.DT/N/0323/09-10 dated 21.07.2009, the said car was delivered to the complainant by Austin Distributor by delivery challan dated 28.08.2009 and proforma invoice was also issued by Austin Distributor Ltd. on 15.06.2009.  So considering these two documents Annexure-1 & 1A, it is proved that Austin Distributor Ltd sold the same car to the complainant and further it is found from Annexure-4, the letter of Hindusthan Motor Excise Section to Austin Distributor Ltd. that Hindusthan Motor received the papers from Austin Distributor Ltd. for considering excise rebate but there was many defect for which it was returned to Austin Distributor Pvt. Ltd. with a request for removal of the defects and also on the ground that registration certificate received after expiry of the paid prescribe for its submission.  So considering that fact, it is clear that Austin Distributor Pvt. Ltd. submitted it at letter stage and after expiry of limitation period as prescribed by the notification by the Central Excise Department and it is also proved that the present Austin Distributor Pvt. Ltd. lost the temporary licence and for which it took such time to get fresh registration certificate and that was done by the Austin Distributor Pvt. Ltd. and thereafter for sending their claim they submitted it and fact remains that Austin Distributor Pvt. Ltd. managed to file it back behind the knowledge of the complainant as complainant was not aware of the fact within what period it shall be submitted.  But it is to be mentioned that the said relief would be given if same would be submitted by the Austin Distributor Pvt. Ltd. only after selling the such type of M/Taxi in time.

          But in this case, it is proved that Austin Distributor Pvt. Ltd. acted illegally and when they found that it is their fault, they somehow submitted it and informed the complainant that it was not within the time.  Now the question is for whose fault it was not submitted to get such benefit and in this regard we have minutely considered the version of the op nos. 1 & 2 wherefrom it is found that they have tried to show that they never sold to the complainant what indicates that the op no.1 & 2 particularly adopted unfair trade practice and even after selling it reported before this Forum in written version that they never sold it, it tantamounts to unfair trade practice and practically for the fault of the op no.1, complainant has suffered a loss of Rs.30,000/-, his chance to get the rebate/benefit if it would be filed by the Austin Distributor Pvt. Ltd. within time but that had not been done and in this regard that he acted illegally and he did not deal with customer honestly but that had not been stated in their written version alternatively he has stated that it was not within time then it is clear that he committed fault  for submission of the same at belated stage and in the written version op disowned his liability.  So, in the circumstances, we are convinced to hold that the complainant is deprived to get rebate from the Central Excise Authority as per regulation only on the ground that the Austin Distributor Pvt. Ltd. did not act properly and did not file such paper within time and also for loss primary registration certificate by the op no.1and that is undisputed.

          In view of the above fact and circumstances, we are convinced to hold that for negligent and deficient manner of service of the op no.1 Austin Distributor Pvt. Ltd., complainant is deceived to get the benefit of rebate of excise duty.  So, it is the liability of the Austin Distributor Pvt. Ltd. to refund it with interest and further op no.1 Austin Distributor Pvt. Ltd. adopted unfair trade practice which is proved from his own written version.

          In the result, the complaint succeeds against the op no.1 only because op no.2 or op no.3 are no liability in this regard because op no.3 is the Central Excise Authority against whom the case does not be and op no.2 is the manufacturer, so the case against op nos. 2 & 3 fails.  Accordingly, the case succeeds against op no.1.

Hence, it is

                                                       ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against the op no.1 Authorised Officer/Manager of Austin Distributor Pvt. Ltd. 19, J.L. Nehru Road, P.S.-New Market, Kolkata – 700087

is hereby directed to pay a sum of Rs.26,800/- and also a compensation of Rs.10,000/- to the complainant within one month from the date of this order along with cost as awarded i.e. total Rs.46,800/-, failing which for each day’s delay and for non compliance of the order after stipulated period, the op no.1 shall have to pay punitive damages @ Rs.500/- per day till full satisfaction of the decretal dues and even then if it is found that op no.1 is reluctant to comply the order, in that case, penal action shall be began against them as per Provision of Section 27 of C.P. Act 1986 and even arrest warrant shall be issued for implementation of the order against op no.1.

          But the present complaint is dismissed against op nos. 2 & 3 without any cost.