UTPAL KUMAR BHATTACHARYA, MEMBER

        Instant Appeal u/s 15 of the C.P. Act, 1986 has been filed challenging the judgment and order dated 11.05.2017 passed by the Ld. District Forum , Kolkata – I ( North ) in complaint Case No. CC/155/2017 dismissing the complaint case in limine .

          Briefly stated, the facts relevant to the instant complaint were that  the Appellant booked a consignment containing 2621 number of Retro Reflective types structure number plates, valued about Rs. 7,94,294/- only, with the Respondent. The consignment , which was to be delivered at Bhopal on payment of service charges for an amount of Rs. 10,936/-, was held up by the Sales Tax Department, Indore  although , the Appellant herein had given Respondent the disclosure required for transport and also furnished the copy of the challan and e-form -49 issued by Commercial Tax Department , Government of Madhya Pradesh .

          The Appellant’s constant persuasion over phone ,  formal communications and legal notice for resolving the issues went in vain.  The Respondent , rather , instead of taking any effective step for releasing the held up commodities, communicated to the Appellant urging for payment of Rs. 69,064/- extra as the demand of the Sales Tax Department at Indore in addition to the service charges of Rs. 10,936/- as mentioned above .

          The Appellant , under compelling circumstances, had to pay by cheque to the Respondent an amount of Rs. 80,000/- (69064/- + 10936/-) by cheque No. 050662 dated 31.03.2017 of Allahabad Bank , Moharana Pratap Nagar, Habib Gangue , P.O. Bhupal in order to get the held up articles .

          A suspicion , however, remained about the Respondent’s resorting to a ploy to extract from the Appellant an additional amount of Rs. 69,064/- in the form of Sales Tax to be paid to the Sales Tax Department of Madhya Pradesh . There being no satisfactory explanation  as to why the said additional amount of Sales Tax was to be paid and no documentary evidence in support of such payment being furnished, the suspicion deepened about the Respondents involving in unfair trade practice .

          Being aggrieved with the aforesaid unlawful activities on behalf of the Respondent  , the Appellant  filed the complaint case before the Ld. District Forum. The impugned judgment and order originated from the said complaint case.

          Heard Ld. Advocate appearing on behalf of both sides. The Ld. Advocate appearing on behalf of the Appellant defended his client exactly in the lines narrated in the petition expressing his suspicion about the Respondent’s adopting unfair trade practice for extracting money from the Appellant in the form of payment of additional sales tax.

          The Ld. Advocate appearing on behalf of the Respondent , per contra , submitted that the Appellant, in fact , cooked up a story to give colour to a bonafide and lawful payment of additional amount of sales tax to the collecting authority of Madhya Pradesh Government as an effort to illegal extraction of money from the Appellant .

       The Ld. Advocate challenged the maintainability of the case as , the Appellant, in his complaint at para-1, averred that it was engaged in business of manufacturing retro reflective type boards. The subject commodities, therefore , were the self manufactured articles of Appellant organization. It appeared from the said paragraph that the Complainant was an approved vendor of Indian Railways as accorded by Central Organization of Railway Electrification.

          The transaction, in view of the above, being a commercial one, the Appellant, as contended , was not indeed a consumer and accordingly, the Consumer Case was not maintainable .

          With the above submission, the Ld. Advocate prayed for the Appeal to be dismissed affirming the impugned judgment and order.

          Perused the papers on record. As regards payment of Sales Tax, the dispute , in the back drop of Appellant’s suspicion of misutilization of the money for Respondent’s own purpose in the name of payment of tax, should not be relied and acted upon in absence of any confirmatory evidence .  It is a fact that the case record does not contain any evidence in the form of acknowledgement of the alleged payment which the Respondent should have furnished. Similarly, the Appellant should not have forgotten its responsibility towards making payment of the demanded amount after careful scrutiny of the demand and on verifying its veracity from the Sales Tax Authority of the concerned State. Expectedly, the Appellant was sufficiently careful and paid a considerable amount after being satisfied about the alleged demand .

          We are, however, more concerned about the maintainability of the complaint case. The Appellant has averred at para No. 1 in his complaint that he is not only engaged in his business of manufacturing the Retro Reflective Type Boards , the subject product but also an approved vendor of Indian Railways as accorded by Central Organization Railway Electrification. The claim of the Complainant Company, in view of the facts and circumstances narrated above , is undoubtedly related to commercial purpose and since the complaint has no averment towards the business activity being his sole source of livelihood by way of self employment , we are afraid, the Complainant hardly has eligibility to be treated as consumer as per provision envisaged in the explanatory note of the definition of consumers u/s  4 (1) (d) of the C.P. Act, 1986 .

          The vital point of consumer ship being decided against the Complainant , we do not find any reason to differ from the findings of the Ld. District Forum in the impugned judgment and order. The impugned judgment and order, therefore, does not deserve any intervention from this Bench. Hence,

                                   Ordered

that the Appeal be and the same is dismissed on contest . The impugned judgment and order stands affirmed. No order as to costs.