BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 232/2001

Dated : 15.03.2010

Complainant:

C.S. Pradeepkumar, T.C 14/2134, Meads Lane, Palayam, Thiruvananthapuram-34.

(By adv. S. Reghukumar)

Opposite parties:

1. M/s T.V.S. Automobiles Ltd., National Highway, Kaloor, Cochin-17.

    

2. M/s T.V.S Ltd., Neeramankara, Kaimanam P.O, Thiruvananthapuram.

    

   (By adv. Alex Varghese)

    

3. M/s Fiat India Ltd. (IND AUTO), L.B.S. Marg, Kurla, Mumbai-400 070.

(By adv. G.S. Kalkura)

This complaint remanded by the Hon'ble State Commission vide order dated 03.10.2007 in Appeal No. 850/2002 and 01/2003. This O.P having been heard on 30.01.2010, the Forum on 15.03.2010 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

This complaint remanded by the Hon'ble State Commission vide its order dated 03.10.2007 in appeal No. 850/02 and 01/2003, to deal with the question whether the opposite party is liable to pay to the complainant Rs. 70,000/- with interest on the ground that there was no legal bar for the complainant to directly apply for the refund of the excise duty collected from the complainant at the time of purchase of car within the time stipulated, to decide the question when the complainant is entitled to approach directly under the Excise Act for refund of excise duty, whether there is any statutory obligation cast on the manufacturer to apply for return of excise duty on behalf of the complainant under Sec. 11-B and if manufacturer is not under any statutory obligation whether there is any deficiency in service on its part in not applying for refund of excise duty within the time stipulated.

The case of the complainant is that on 29.02.2000 he purchased a Fiat Siena T.D.60 EL-PS Metallic car manufactured by the 3^rd opposite party from the 1^st opposite party (dealer) paying Rs. 6,73,746/-, that the said car was purchased after availing a loan of Rs. 4,70,000/- from M/s Fiat Sundaram Motor Finance Limited, Thiruvananthapuram, that the vehicle was purchased only to be plied as a taxi, that at the time of purchase opposite party assured the complainant that the complainant is eligible for reimbursement of Rs. 70,000/- by way of reduction in excise duty as the vehicle is used as a taxi, that opposite party directed the complainant to approach them after complying with all mandatory formalities of registration and to produce the copy of the permit and R.C Book and the filled in application within 30 days from the date of purchase, and that complainant completed all mandatory formalities for reimbursement and submitted the prescribed application to the opposite parties within 7 days from the date of taking delivery of the vehicle (06.03.2000). It is submitted by the complainant that opposite party informed him over telephone that his application for reimbursement of Rs. 70,000/- was rejected, that on 23.03.2001 complainant sent a letter to the 2^nd opposite party stating that complainant was in no way responsible for the rejection, that on 26.04.2001 2^nd opposite party informed the complainant that his reimbursement claim has been rejected for the reason 'late submission' and they are not in a position to pass on the benefit to the complainant. It is the specific case of the complainant that he had observed all mandatory formalities and submitted the reimbursement claim within 7 days and that the action of the opposite parties in going back from the assurance amounts to deficiency in service and unfair trade practice. Hence this complaint to direct opposite parties to pay to the complainant Rs. 70,000/- with interest along with a compensation of Rs. 50,000/- for mental agony and Rs. 50,000/- as compensation for deficiency in service and Rs. 5,000/- towards costs.

1^st and 2^nd opposite parties filed version contending that the claim of the complainant is not a consumer dispute, that complaint is not maintainable as he has not hired or availed the service of the opposite parties 1 & 2 for consideration to obtain refund of excise duty in his favour, that complainant purchased the aforesaid car manufactured by the 3^rd opposite party through the 1^st opposite party on 29.02.2000, that at the time of sale the said car had a temporary private registration. Subsequently complainant got the car converted as a taxi and delivered photocopy of documents like R.C. Book, taxi permit etc. to the opposite parties for being forwarded to the vehicle manufacturer to claim excise duty refund from Central Excise Department of Government of India, that the documents so delivered by the complainant were immediately forwarded to the manufacturer and rejection of claim as informed by the vehicle manufacturer was duly intimated to the complainant. It is further averred in the version that claim for refund of excise duty after registering it as a taxi is a subsequent event unconnected with sale, that opposite parties 1 & 2 have not assured the complainant at any time that they will refund the excise duty, that dealer is an unnecessary party and sale was not subject to any condition that these opposite parties would refund excise duty. The complaint is devoid of bonafides. Hence opposite parties 1 & 2 prayed for dismissal of the complaint.

3^rd opposite party filed version contending that it is barred in law as per the provisions of the Central Excise Act, that regarding non-refund of excise duty there is no consideration whatsoever paid or promised to the dealer or to the manufacturer, that the refund of excise duty cannot be termed as a service. It is mandatory that if any person intends to claim refund of excise duty, the vehicle has to be registered as taxi within 90 days from the date of excise duty gate pass and relevant documents including necessary application has to be submitted within the stipulated period, that the vehicle was registered for taxi purpose only after the expiry of the stipulated period. Therefore complainant is not entitled to get refund of excise duty. There is no deficiency in service or unfair trade practice on the part of the 3^rd opposite party. Hence 3^rd opposite party prayed for dismissal of the complaint.

As per the direction of the appellate commission vide order dated 03.10.2007 in appeal No. 850/2002 and 01/03 the following points arise for consideration:

1. Whether opposite party is liable to pay to the complainant Rs. 70,000/- with interest on the ground that there was no legal bar for the complainant to directly apply for refund the excise duty collected from him at the time of purchase of the car within the time stipulated?

2. Whether the complainant is entitled to approach directly the authorities under Excise Act for refund of excise duty?

3. Whether there is any statutory obligation on the part of the manufacturer to apply for return of excise duty on behalf of the complainant?

4. If manufacturer is not under any statutory obligation whether there is any deficiency in service on the part of the opposite parties for refund of excise duty within the time stipulated?

5. Whether the complainant is entitled to get compensation and costs?

In support of the claim complainant has filed proof affidavit and Exts. P1 to P7 were marked. In rebuttal opposite parties did not file affidavit or documents.

Points (i) to (v):- To substantiate the claim of the complainant, complainant has filed affidavit and 7 documents were marked. Ext. P1 is the copy of the invoice dated 29.02.2000 for Rs. 6,73,746/- issued by 1^st opposite party. Ext. P2 is the copy of the agreement executed between the complainant and authorized signatory of Fiat Sundaram Motor Finance Ltd. Ext. P3 is the photocopy of certificate of registration. As per Ext. P3 name of registered owner is C.S Pradeep Kumar. Description of the vehicle Fiat Siena. As observed by the appellate commission it is an undisputed fact that excise duty of Rs. 70,000/- was collected from the complainant at the time of sale of car on 29.02.2000. Ext. P4 is the copy of the Form 'C'. Ext. P5 is the copy of permit issued by Secretary, RTA, Thiruvananthapuram dated 14.03.2000. Ext. P6 is the copy of the letter dated 23.03.2001 from the complainant to the marketing manager, TVS, Kaimanam. As per Ext. P6 complainant has informed the 2^nd opposite party that “the said car has been registered as tourist taxi adhering to all rules and procedures. This was done because of the reimbursement offer of Rs. 70,000/- otherwise he would not have gone for the purchase of this model vehicle”. It is further mentioned therein (Ext. P6) that complainant has filled up all relevant applications and documents to get reimbursement, that after a long lapse of time opposite party has informed him over telephone that the department has rejected his application on the ground that this was not purchased within the time stipulated by the department. It is not due to their mistake. Instead of giving the car that was manufactured within the stipulated time opposite party had given him the car manufactured much earlier. Under such circumstances it is not fair to deny the reimbursement of Rs. 70,000/- due to him. Ext. P7 is the letter dated 26.04.2001 addressed to the complainant by the 1^st opposite party informing him that 1^st opposite party had received the information from the Fiat Mumbai that his excise claim has been rejected for reason of late submission. The affidavit filed by the complainant in lieu of chief examination remains uncontroverted as opposite parties have not cross examined the complainant. The learned counsel for the complainant cited the decision of the Hon'ble National Commission in Assistant Commissioner, Central Excise Vs. Rajesh Bhatti & others 2003 CTJ 716 (CP) (NCDRC) wherein Hon'ble National Commission has elaborately discussed the Central Excise Act especially Sec. 11-B. Sec. 11 B provides for claim of refund of excise duty. The relevant part of Sec. 11 B is as under:

Se. 11 B Claim for refund of duty (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence including the documents referred to in Sec. 12 A as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person provided that …......................

(2) …..............

(3) Notwithstanding anything to the contrary in any judgement, decree, order or direction of the Appellate Tribunal or any court in any other law for the time being in force, no refund shall be made except as provided in sub Sec. (2). Relevant date has also been explained in Sec. 12 A.

12 A : Price of goods to indicate the amount of duty paid thereon- Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sale invoice and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold.

Sec. 5 A of the Central Excise Act empowers the Central Government to grant exemption from duty of excise on such conditions as may be specified in the notification granting such exemption. Hon'ble National Commission observed that there is no dispute that when a motor vehicle is registered as a taxi there would be exemption from payment of duty of excise to a certain extent. The Central Excise Act is a complete code. An application for refund of excise duty under Sec. 11 B has to be made within the prescribed period. It is the Central Excise Officer mentioned in that Sec. who is solely authorized to decide the claim for refund. No other court or tribunal or authority is empowered to go into the question of refund of excise duty. The application for refund of excise duty can be made only by the person from whom it has been collected. In fact, it would be the manufacturer who would have to pay the duty of excise in the first instance at the time of clearance of the goods. It will be therefore, he who would have to apply for refund of the duty of excise under Sec. 11 B of Central Excise Act with such details and documents as may be prescribed. In the present case it is the say of the complainant that he got his vehicle registered as taxi and submitted all the required papers for getting exemption of duty of excise to the 2^nd opposite party who forwarded the same to the manufacturer and rejection of claim was intimated to complainant. As decided by the National Commission, manufacturer is the only person entitled to seek refund of excise duty and pay the same to the complainant. National Commission observed as under: “Even if the order of the petitioner rejecting the application seeking refund of the duty of excise was allegedly on frivolous ground this order under Sec. 35 of the Central Excise Act was appealable and the appeal ought to be filed by the manufacturer who was the only person entitled to seek refund and then pay the same to the complainant. Admittedly manufacturer did not file any appeal rather took a specious plea before the State Commission that petitioner in the exercise of his power under Sec. 11 B of the Act rejected the claim on frivolous grounds. There was thus deficiency in service on the part of the manufacturer”. In this case, 3^rd opposite party has no case that the amount of excise duty as permissible under exemption notification has been paid to the complainant. It is to be highlighted that “it is the Central Excise Officer who is solely authorized to decide a claim for refund. No court, tribunal or authority is empowered to go into the question of refund of excise duty”. In the light of the above decision, herein the 3^rd opposite party, being the manufacturer of the vehicle in question was the only person to have sought refund of the excise duty or appealed to appropriate authority against the order rejecting the application for refund. 3^rd opposite party has not done it. The action of the 3^rd opposite party would amount to deficiency in service. Taking into consideration of the totality of circumstance, we are of the view that complainant cannot recover the said amount by any other legal means other than realising the same from the 3^rd opposite party by way of compensation.

In the result, complaint is allowed. 3^rd opposite party shall pay the complainant a sum of Rs. 70,000/- towards compensation along with a cost of Rs. 5,000/-. Opposite parties 1 & 2 are exonerated from any liability to complainant. The said amounts shall carry interest at 9% if not paid within 2 months from the date of receipt of this order.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of March 2010.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

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O.P. No. 232/2001

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of the invoice dated 29.02.2000 for Rs. 6,73,746/-

issued by 1^st opposite party.

P2 - Photocopy of the agreement.

P3 - Photocopy of certificate of registration.

P4 - Photocopy of Form C.

P5 - Photocopy of permit issued by Secretary, RTA, Tvpm dated

14.03.2000

P6 - Photocopy of the letter dated 23.03.2001

P7 - Letter dated 26.04.2001 addressed to complainant by 1^st

opposite party.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT