ORDER

(Passed on  27/11/2018)

PER SHRI.ATUL D.ALSI, PRESIDENT.

      The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986 alleging deficiency in service in making gold ornaments and thereby claiming refund, compensation and cost.

2.       The facts in short giving rise to this complaint are as follows..

The complainant  is residing at Chandrapur.  The OP is a franchisee and branch of M/s P.N.G.Jwellers Pvt.Ltd. at Chandrapur. The complainant wanted to purchase a Koimbtur Gold Chain of 12.28 gms.  against  the replacement of 3 old gold chains of the complainant. On 6/1/2018, the complainant purchased one Koimbtur gold chain and the OP charged Rs.5110.32 as making charges against agreed amount of Rs.4934.10. Similarly, the OP illegally charged the GST @ 3% on old gold exchange though as per GST Act, the GST on old gold exchange is exempted. The OP also wrongly calculated the value of old gold chains and also refused to refund Rs.2,598/- balance amount of difference between old gold cost and the cost of new purchased chain and OP insisted to purchase gold or keep the balance as Credit for future transaction, but refused to refund the amount in cash.

3.       The OP, showed weight of the old gold less by 3.3 grams than its original weight and thereby indulged in Unfair Trade Practice. Therefore, the complainant issued legal notice to the OP but the same was not complied. Therefore, the complainant has filed this complaint seeking refund of 3% illegally charged GST, excessive making charges, refund of Rs.2598/- balance amount of cost of replaced gold,  and the price of less weight shown amounting to Rs.10021/- for 3.3 gms. He further claimed compensation for mental torture of Rs.25,000/-  and cost of proceeding.

4.       The complaint is admitted and notice was served on the OP. The OP filed its reply and thereby denied allegations against it. However, it admitted the sell of Koimbtor Gold Chain to the complainant against replacement of 3 old gold chains of the complainant. The OP submitted that as per the terms of the policy of OP, the credit towards difference of price between purchase of new gold and sell of old gold amounting to Rs.2596/- was given in favour of complainant. On 6/1/2018, when the complainant visited OP, the representative of the OP had given a clear understanding to the complainant about  making charges, melting charges, GST applicable as per law and the complainant had accepted the above terms and had acted upon it.  Therefore the principal of estoppels squarely applies in this matter and the complainant is estopped from claiming any compensation. The OP sells only Hallmarked gold ornaments and the price of Hallmarked gold and the price of old gold of the complainant was adjusted by issuing Credit Memo. The melting charges are calculated over and above impurity of gold which came out to be 17% which was duly deducted by OP and the same is mentioned in exchange agreement which is signed by the complainant on 6/1/2018. The complainant has no cause of action and locus standie to file this complaint. He has no case on merit. Therefore the complaint deserves to be dismissed with cost. The OP has rendered service to the complainant as per terms of agreement and there is no deficiency in service on the part of OP.   Therefore the petition deserves to be dismissed with cost.

5.      Counsel for the complainant argued that the OP charged Rs.5110.32 as making charges against agreed amount of Rs.4934.10. Though the old gold was of 96% purity, the OP supplied new gold of 92% purity only. Though the old gold weighed 19/689 gms, the OP considered it 16.509 gms only and deducted 3/381 gms as melting charges. Similarly, the OP illegally charged the GST @ 3% on old gold exchange though the GST on old gold exchange is exempted. The OP also refused to refund Rs.2,598/- balance amount of difference between old gold cost and the cost of new purchased chain.  Therefore the service rendered by OPs amounts to negligence of service. Therefore the petition may be allowed as prayed. 

6.         Counsel for the OPs argued that prior to the transaction, the representative of the OP had given a clear understanding to the complainant about  making charges, melting charges, GST applicable as per law and the complainant had accepted the above terms. Therefore, the OP has deducted due amounts and hence there is no substance in the averments of the complainant and the complaint deserves to be dismissed with cost.

7. We have gone through the complaint, written versions filed by OP, affidavit, documents and WNA filed by the parties. We have also heard the oral arguments advanced by parties.

                    Points                                                                                     Finding

1.  Whether  there is deficiency in service on the part

     Of OP. ?                                                  Yes

3.  What order ?                                                                    As per final order..

As to issue No.1

8.      On 6/1/2018, when the complainant went to the OP to purchase Koimbtur gold chain against his 3 old chains, a form of gold  exchange agreement was signed by both the parties. As per that agreement,  the complainant has agreed to deduct 3% of the cost of old gold towards melting charges, actual waistage in melting process, refinery charges, therefore the complainant is not entitled to refund of value of 3.381 gm. @  29,296/- per 10 gms.which comes to Rs.10,021/-.

9.       Secondly, the contention of the complainant that the OP has charged excess amont towards making charges. However, there is no evidence brought on record by the complainant and there is no mention in the gold exchange agreement that the OP had initially agreed to charge Rs.4,934.10 as making charges but actually charged Rs.5110/32. Therefore the contention of the complainant can not be accepted in respect of charging of excess amount on this count.

10.     The third contention of the complainant is that the OP has refused to refund the Rs.2,598/- which is the balance amount of difference between old gold cost and the cost of new purchased chain and OP insisted to purchase gold or keep the balance as Credit for future transaction, but refused to refund the amount in cash. The OP has admitted and also has disclosed on bill dated 9/1/2018 that there is a credit balance of Rs.2,596/- with the OP. It is the contention of the OP that the amount of credit balance can not be refunded but it would be adjusted towards future transaction.  As per terms and conditions mentioned in the bill dated 9/1/2018, as per condition No.10, if the amount of refund exceeds Rs.10,000/- payment will be made by crossed cheque. However, there is no condition in the gold exchange agreement or in the bill that the difference amount will not be refunded and it would be credited for future transactions. Therefore, non refund of Rs.2,596/-  and keeping the amount in credit amounts to indulging into Unfair Trade Practice and it also amounts to deficiency in service on the part of OP. The complainant is entitled to refund of Rs.2,596/- in cash or by cheque.

11.     The fourth contention of the complainant is that, the OP illegally charged the GST @ 3% on old gold exchange though s per GST Act, the GST on old gold exchange is exempted. There is no mention in the gold exchange agreement about charging of 3% GST. On the other hand, as per E-mail  of Economic Times issued by ETBUREAU dated 14/7/2017 it is clarified that the exchange of old gold for the new won’t attract the Goods and Services Tax. The Finance Ministry has clarified that, eventhough the sell of old gold in exchenge of new gold is a transaction for consideration, it cannot be said to be in course of furtherance of business as selling of gold jwellery is not the business of the said individual and hence does not qualify to be a supply per se. Accordingly, the sell of old gold jwellery by new jwellery will not attract the provision of Section 9(4) of the GST Act and the Jweller cannot be liable to pay the tax. Hence the OP has illegally charged 3% GST in the transaction and as such he is liable to refund that amount of GST to the complainant. Therefore we pass the following order..

Final order

1.    The Complaint is partly allowed.

2.    The OP shall refund to the complainant balance amount of difference

        between old gold cost and the cost of new purchased chain amounting to

        Rs.2,596/- and also the 3% GST charged in the transaction.

3.   The OP shall pay compensation of Rs.10,000/- and cost of Rs.10,000/-

       to the complainant.

4.   Copy of the order be furnished to both the parties free of cost.

(Smt.Kalpana Jangade (Kute)  (Smt.Kirti Vaidya (Gadgil)     (Shri.Atul D.Alsi)

               Member                                 Member                                    President