CONSUMER DISPUTES REDRESSAL FORUM
Palakkad, Kerala
Dated this the 30th day of March 2017
PRESENT : SMT. SHINY.P.R, PRESIDENT Date of filing: 28/10/2015
: SMT. SUMA K.P, MEMBER
: SRI. V.P. ANANTHA NARAYANAN, MEMBER
CC/155/2015
C.Kandan
S/o. Chami, Vallath Veedu,
Thekkeparambu, Puduppariyaram post,
Palakkad – 678 731 : Complainant
(By Party in person)
Vs
The Manager
Beverages Corporation Ltd.,
Koppam, Puthur, Palakkad. : Opposite party
(By Adv. Raghudas S G)
O R D E R
By Smt. Suma K.P.Member
The case of the complainant is that on :-
On 19/04/2015 the complainant purchased KYRON PR BRANDY of 750 ML from the opposite party as per receipt number 09002 for an amount of rupees 980/-. But the MRP shown on the packet was 830/-. When the complainant noticed the price difference on the packet and the receipt, he made complaint with the opposite party. The opposite party collected an excess amount of Rs. 130/- from the complainant. Hence the opposite party is conducting illegal and unfair trade practice. Notice was issued to opposite party for appearance. The opposite party entered appearance and version by denying the entire allegation leveled against the opposite party.
The contentions of the opposite party are that the complaint is not maintainable one. It was filed with a malafide intention in order to extract undue money. It is an experimental one and bereft of bonafides. It was filed to tarnish the image of the opposite party. The date on which the alleged purchase the price of the said item brandy was Rs. 980/-. The complainant has to prove that such a purchase was as alleged. There is no unfair trade practice. The price is fixed by the producers and the Govt. is fixing the rate of tax, cess etc. as per the powers conferred in the existing laws. The selling price is fixed and controlled by the terms and conditions as fixed by the Govt. of Kerala and the purchaser of the IMFL is liable to pay the powers conferred in the existing laws. The selling price is fixed and controlled by the terms and condition as fixed by the Govt. of Kerala and the purchaser of the IMFL is liable to pay the tax as fixed or revised by the Govt. in time to time. The pre-printed labels of IMFL will not affect the collection of revised tax, cess etc. by the Govt. The Kerala State Beverages Corporation (M&M) Ltd. is collecting the IMFL from the producers without making any payment at the time of supply and the Corporation or the Govt. of Kerala is not making payment of the tax, cess etc. to the Authorities concerned even prior to the sale or getting supply. The Kerala state Beverages Corporation(M&M) Ltd. is conducting the wholesaling and retailing business of IMFL in the state under the direction of the Govt. of Kerala. The relief sought in the complaint is not at all a matter coming under the Consumer Protection Act. The complainant is not coming under the purview of the term consumer. The opposite party is conducting the business according to the law. The complainant is not entitled to get an amount of Rs. 150/-, Rs.1,500/- and Rs. 5,000/-as claimed in the complaint and the complainant is liable to pay an amount Rs. 10,000/- to the opposite party since, the present complaint is a frivolous ,vexatious and false one.
The complainant filed chief affidavit in lieu of chief examination. Ext. A1 to A7 was marked from the side of complainant. Empty Bottle was marked as MO1, and complainant was cross examined as PW1.
Opposite party also filed chief affidavit and Ext. B1 to B4 series was marked on the side of opposite party. The shop – in – charge of opposite party examined as DW1. Evidence was closed and the matter was heard.
The issues that arises for consideration are.
1. Whether there is any deficiency in service from the part of opposite
party?
2. If so, what is the reliefs and cost?
ISSUES :-
The complainant was cross examined as PW1 by the opposite party in the above matter. At the time of cross examination the complainant deposed that the manufacturer alone has the power to hike the tax of their products and the Govt. has no power to impose the tax. As per his version, he has to pay only the rate and the tax fixed by the manufacturer KYRON company and he has no liability to pay the tax fixed by the Govt. Apart from that he further stated that KYRON Brandy has to be sold as per the laws of its manufacturer.
Through questionnaire of the complainant was duly answered by the opposite party he was cross examined by the complainant. In the examination, the opposite party categorically stated that he was the shop-in- charge of outlet number FL-01-9008 at Koppam, Palakkad. He never worked in the FL-01-9007. FL-01-9007 outlet is situated about 5 KMS away from the FL-01-9008 outlet. On the basis of receipt of the notice from the Forum he entered appearance in the above numbered case. The selling price was increased on the basis of imposition and collection of the revised tax, by the Govt. of Kerala and the Govt. has ample power to do so on the alcoholic beverages.
The Ext. A1, A6 and MO1 are not relating to each other. Likewise, the Ext. A4 and Ext. A7 series have not been proved properly by the complainant . The Ext. A7 series never help the complainant to improve his case. The questions and the answers in each petition under RTI are immaterial and irrelevant to the present context. The finding of the Honorable National Commission is not applicable to this case as alleged by the complainant. The existing laws are very clear and specific and the Govt. of Kerala has taken valid steps to implement the revised tax and cess. MO1 is an empty bottle and tempered one.
The learned counsel for the opposite party submits that the Govt. of kerala has ample power to revise and collect the tax, cess etc. on the alcoholic beverages. The pre – printed labels will not make any bar to the collection of the revised tax or cess. As per the section 6(e) of THE LEAGAL METROLOGY (PACKAGED COMMODITIES) RULES 2011 and section 17 and 18 of the KERALA ABKARI ACT, the Kerala state Govt. is empowered to do so. If there is a difference of duty of excise between two license periods, such deference can be collected in respect of all stocks of IMFL.
The Ext. B1 to B3 and B4 series shows that the revision of tax, cess etc made by the Govt. of Kerala of the IMFL, the publication of the same in the Kerala Gazette and the selling price of the KYRON Brandy on the period of the alleged purchase. Therefore, considering the totality of the case, it can be seen that the opposite party is not conducting the illegal and unfair trade practice.
Apart from the above contention, it is undoubtedly proved that the complainant is not coming under the purview of the term ‘consumer’. The complainant himself admitted in the cross examination that he purchased the KYRON Brandy from the outlet situated just behind the Palakkad IMA HALL and not either from the opposite party, or from Koppam, or from Puthur. The outlet number which is situated behind the IMA HALL is FL-01-9007 and the Ext. A1 will go to show that it was issued from the FL-01-9007. The cause title of the complainant as well as the seal of the opposite party and the evidence of PW1 and DW1 will go to show that the present opposite party outlet is the FL-01-9008 situated at Koppam, Puthur, Palakkad. Both the outlets are different and situated in different places. The number and address of the FL-01-outlets are also different. The complainant has not filed the complaint against the actual seller. The complainant has not purchased the MO-1 from this opposite party as alleged and opposite party has not sold this item to the complainant. Therefore, there is no buyer-seller relationship between the complainant and the opposite party . Apart from that the complainant has failed to prove the purchase of MO1 by Ext. A1 was as alleged from the opposite party. The Ext. A1 bill as well as the oral testimony of the parties will prove the contention of the opposite party, that the complainant never comes under the purview of the term consumer.
The learned counsel for the opposite party submits that for the Government , the Kerala state Beverages Corporation (M&M) Ltd. is collecting the IMFL from the different producers without making any payment at the time of getting supply from the IMFL producers. The KSBC (M&M) Ltd. is making payments to its suppliers only after certain days of the sale of supplied items. So, either by the KSBC (M&M) Ltd. or by the govt. of Kerala is not making payment of the tax to the authorities even prior to the sale of the IMFL or at the time of getting supply by its producers. The price of the product alone is fixed by its producer and supplying it to the KSBC (M&M) Ltd. for conducting wholesaling or retailing it within the state of Kerala. The Govt. of Kerala is having ample powers to fix the tax, cess etc. on products of IMFL. Therefore, by using its powers as per the laws the Govt. of Kerala is fixing the tax, cess etc as and when they decided to do so. Either by producers of the IMFL or by the Government of Kerala or by the Kerala State Beverages Corporation (M&M) Ltd. is not making collections or payments of the tax, cess etc. even prior to the final sale of the IMFL from the corporation. The pre-printed labels will not affect the collection of revised tax, cess etc. by the Government of Kerala in the commodities such as IMFL. Therefore, the selling price is fixed and controlled by the terms and conditions directed by the Government of Kerala. The Kerala State Beverages Corporation (M&M) Ltd. has no control over it. The allegation in the complaint, the documents produced as evidence and the oral evidence are not corroborative. In the light of the above submissions, we cannot attribute deficiency of service on the part of the opposite parties. Hence the complaint is dismissed without cost.
Pronounced in the open court on 30th March 2017.
Sd/-
Smt. Shiny. P.R
President
Sd/-
Smt. Suma. K.P
Member
Sd/-
Sri. V.P.Anantha Narayan
Member
Exhibits marked on the side of the complainant
Ext. A1 - Invoice No. 11015320 dated15/04/2015
Ext.A4 - Copy of Letter issued by AC Legal Metrology to President KCPC
Palakkad 09/06/2015 - marked with objection of opposite parties
counsel
Ext.A5 - Copy of letter AC Commercial Taxes to President KCPC
Palakkad 10/06/2015 - marked with objection of opposite parties
counsel
(Ext.A2, Ext.A3 & Ext.A6 not marked
Exhibits marked on the side of the opposite party
Ext.B1 - Price list of IMFL/BSER/WINE for Warehouses and FL-1 Shops for 2014-15
(Copy)
Ext.B2 - Attested copy of order of permission issued from the Govt. of India-
Ministry of Consumer Affairs, Food and Public Distribution Department
of Consumer Affairs Legal Metrology Division dated 18/06/2015.
Ext.B3 - Attested copy of letter No. KSBC/FM/100/2015-16 dated 31/03/2015
Ext.B4 Series- Copy of G.O Published in Kerala Gazette dated 30/03/2015
Witness examined on the side of complainant
PW1 C.V . Kandan
Witness examined on the side of opposite parties
DW1 - Jijesh. U
MO-1 - Empty Bottle.
Cost allowed
Nil
