Andhra Pradesh

Chittoor-II at triputi

CC/39/2014

Muppalla Venkateswara Rao, S/o. M. Veeraiah - Complainant(s)

Versus

M/S. L.M. Automotive India Ltd., by its Authorised Signatory/Dealer - Opp.Party(s)

G. Ramaiah Pillai

03 Jul 2015

ORDER

Filing Date:07.08.2014

Order Date: 03.07.2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

FRIDAY THE THIRD DAY OF JULY, TWO THOUSAND AND FIFTEEN

 

C.C.No.39/2014

 

Between

 

Muppalla Venkateswara Rao,

S/o. M.Veeraiah,

Hindu, aged 52 years,

Asst. Manager,

TCT Mills,

Renigunta,

Chittoor District.

 

Residing at:

 

Flat No.1-D, Padmapriya Towers,

Bismillangar,

Renigunta – 517 520,

Chittoor District.                                                                                          … Complainant

 

 

And

 

1.         M/s. L.M. Automotive India Ltd.,

            By its Authorised Signatory / Dealer,

            D.No.11-21B2, Renigunta Road,

            Tirupati – 517 501.

 

2.         Honda Cars India Ltd.,

            By its Authorised Signatory,

            Plot No.A1, Sector 40/41,

            Surajpur – Kasana Road,

            Greater Noida,

            Gowtham Budh Nagar District,

            Uttar Pradesh – 201 306.                                                    …  Opposite parties.

 

 

            This complaint coming on before us for final hearing on 15.06.15 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.G.Ramaiah Pillai, counsel for the complainant, and Sri.Kanchi Prakasam, counsel for the opposite party No.1, and Sri.M.Sreedhar Reddy, counsel for the opposite party No.2, and  having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

 

            This complaint is filed under Sections-12 and 14 of C.P.Act 1986, by the complainant for the following reliefs 1) to direct the opposite parties 1 and 2 to refund a sum of Rs.43,675/- which was allowed as concessional rate of excise duty at 8% on the value of the vehicle (Rs.5,45,938/-), 2) to direct the opposite parties 1 and 2 to pay Rs.50,000/- towards compensation for the mental agony caused by opposite parties     1 and 2, and 3) to direct the opposite parties 1 and 2 to pay Rs.2,000/- towards costs of the litigation.

            2.  The averments of the complaint in brief are:-   that the complainant being a physically handicapped person, purchased auto transmission vehicle viz. BRIO 1.2 VXATVSIV without gear on 08.11.2013 for Rs.7,42,250/- by availing loan from State Bank of Hyderabad, Tirupati, under hypothecation agreement. The complainant when contacted opposite party No.1 on 05.11.2013 and expressed his intention to purchase the vehicle suitable for him, opposite party No.1 advised him to purchase the above said vehicle, which was designed in such a fashion, which can be driven by a physically handicapped person. The value of the vehicle was shown as Rs.5,45,938/- + VAT at 14.5% which comes to Rs.79,162/-, totaling Rs.6,25,100/-. The opposite party has shown on road price of the vehicle as Rs.7,42,340/- including taxes. That, he being physically handicapped, is entitled to exemption from payment of excise duty. He also shown the certificate issued by the Medical Board, Secunderabad dt:06.11.1996. The opposite party has given temporary registration number, later it was regularized and its registration No.AP03-BF-2064 on 21.11.2013. It was also insured with Bajaj Allianz General Insurance Company, Pune, for ID value of Rs.5,93,845/-. The opposite party when contacted by the complainant on 05.11.2013 promised that the excise duty exemption will be given, but no such concession was given to the complainant inspite of his representations. Hence the complaint.

            3. The opposite party No.1 filed its written version admitting the fact of purchasing BRIO 1.2 VXATVSIV auto transmission vehicle without gears by the complainant and also admitted that the complainant sent a representation to opposite party No.2 on 18.12.2013 and got issued legal notice on 25.01.2014 to opposite parties 1 and 2. Subsequently, opposite party No.2 issued a certificate dt:30.01.2014 notifying that the complainant is having disability of congenital hypoplacia (left) Fore arm and wrist absence of three fingers and he is fit to drive a passenger car fitted with automatic transmission, inspite of above disability; and denied other allegations. Opposite party No.1 further contended that the complainant has not produced his driving licence, RTO letter and other essentials that are necessary to have excise duty exemption. That before purchasing the vehicle, the complainant has to produce 1) medical certificate issued by the Government hospital in proper format as required by the “Ministry of Heavy Industries” to the effect that he is fit to drive the automatic vehicle inspite of disability, 2) he has to produce the excise duty exemption certificate issued by the Ministry of Heavy Industries for getting eligibility for exemption but the complainant failed to produce the said documents before purchase of the vehicle. Therefore, complainant is not entitled to such exemption. The complainant purchased the vehicle without producing any of such certificates; as such the opposite party is not liable to the releifs. Once the excise duty is paid, it is not for the opposite party to refund the same. There is no deficiency in service on the part of opposite parties, they did not cheat the complainant or any other customer as alleged by the complainant and prays the Forum to dismiss the complaint with costs.

            4.  The opposite party No.2 filed its written version contending that the complaint is bad for mis-joinder of opposite party No.2 – the Manufacturing Company, when there is no defect in the vehicle and no deficiency of service on the part of opposite party No.2. This opposite party No.2 has extracted the provisions of Section-4 of the Central Excise Act 1944, where under the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods and further contended that when the vehicles were manufactured, they will be out rightly sold to the agents like opposite party No.1, that the manufacturer will collect the entire cost of the vehicle as well as excise duty etc. once a vehicle was removed from the manufacturing unit and taken away by the agents / dealers, the responsibility of the manufacturing unit will be ceased. If there is any defect in the manufacturing of the vehicle, then only the manufacturer will be liable, so the opposite party No.2 in this case is nothing to do. According to Section-4 of the Central Excise Act 1944, to avail exemption, one must directly purchase the vehicle from the manufacturer. The manufacturer - opposite party No.2, has sold the vehicle to the authorized dealer (opposite party No.1) and has already paid excise duty of the vehicle. Therefore, approaching 2^nd opposite party for refund of difference amount paid as excise duty is un-called for and unconstitutional, that there is no provision for refunding of excise duty once it was paid by any purchaser including the handicapped person. It is nowhere mentioned in the provisions of Central Excise Act or the notifications that a handicapped person, who is a buyer of goods or a product or a vehicle, can claim refund of differential amount of excise duty. In this case, the vehicle was already purchased by the complainant directly from the authorized dealer, therefore, 2^nd opposite party is not either responsible or liable for the reliefs sought for and prays the Forum to dismiss the complaint with costs.

            5.  The complainant and the opposite parties 1 and 2 have filed their respective chief affidavits and written arguments as well and got marked Exs.A1 to A18 for the complainant and Exs.B1 to B5 for the opposite parties.

            6.  Now the points for consideration are:-

            (i)  Whether the complainant is entitled to refund of excise duty already paid?

            (ii)  Whether the complainant has made any application or representation

                  before opposite party No.1 or opposite party No.2 before purchasing the

                  vehicle seeking exemption of excise duty in connection with the purchase

                  of vehicle?

            (iii)  Whether the complainant is entitled to the reliefs sought for?

            (iv)  To what relief?   

            7.  Point Nos.(i) and (ii):- to answer this point, it is pertinent to mention that any person wants to purchase any vehicle or goods and wants to claim any sort of exemptions, such person has to make his representation before purchasing such vehicle or goods. In this case, the complainant contended that on 05.11.2013, he approached opposite party No.1 and expressed his intention to purchase a vehicle suitable for him to drive the vehicle personally and said that he is a physically handicapped and given a certificate issued by the Medical Board, Secunderabad, in the year 1996. On which the opposite party No.1 advised him to purchase the vehicle namely BRIO 1.2 VXATVSIV auto transmission vehicle without gears stating that it was designed for physically handicapped person. But so far as that advise is concerned, we cannot find fault with opposite party No.1 but the complainant further stating that opposite party No.1 has promised that he will get exemption of excise duty in favour of the complainant but there was no any iota evidence except the allegation in the complaint and also chief affidavit, otherwise it may be said that no brochure or no advertisement, pamphlet promising the customers to provide such facilities to the buyers, those who wants to buy a car specially designed for the handicapped person, in the absence of any such evidence or document, simple allegation cannot be accepted.

            8.  The complaint is filed under Sections-12 and 14 of C.P.Act  What Section-12 of C.P.Act says is manner in which complaint shall be made i.e. a procedure as to how the complaint is to be filed and it runs as follows:-

“a complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by –   (a)  the consumer to who such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided.   (b)  my recognized consumer association whether the consumer to who the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not   (c)  one or more consumers, where there were numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or   (d)  the Central Government or the State Government, as the case may be, either in its individual capacity or as a representative of interests of consumers in general.        The remaining clauses 2, 3 and 4 explains the procedure to be followed on filing such complaints.

 

              Section-14 of C.P.Act is in respect of finding of the District Forum and it runs as follows:-

“(1) If, after the proceeding conducted under Section-13, the District forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to [do] one or more of the following things, namely:-   (a)  to remove the defect pointed out by the appropriate laboratory from the goods in question;   (b)  to replace the goods with new goods similar description, which shall be free from any defect;   (c)  to return to the complainant the price, or , as the case may be, the charges paid by the complainant;   (d)  to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party;         [provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit;]   (e)  to [remove the defects in goods] or deficiencies in the services in question;   (f)  to discontinue the unfair trade practice or the restrictive trade practice or not to repeat it;   (g)  not to offer the hazardous goods for sale;   (h)  to withdraw the hazardous goods from being offered for sale;   [(ha)  to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature;   (hb)  to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently:   Provided that the minimum amount of sum so payable shall not be less than five percent of the value of such defective goods sold or service provided, as the case may be, to such consumers:   Provided further that the amount so obtained shall be credited in favour of such person and utilized in such manner as may be prescribed;   (hc)  to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement;]   (i)  to provide for adequate costs to parties”].          The remaining portion of Section-14 is detailed with the procedure to be followed while conducting the Forum.

            

            9.  Therefore, as per Sections-12 and 14 of C.P.Act, nowhere it is mentioned that the persons like the complainant herein can recover the excise duty already paid to the dealer at the time of purchasing the vehicle, more particularly, if there is any defect in the manufacture of vehicle or any defects that developed in the vehicle subsequent to the purchase were not rectified by the dealer or manufacturer, whatever the case it may be, then only the liability of the dealer as well as the manufacturer will arose. It is not the case of the complainant that there are defects in the vehicle either in manufacturing of the vehicle or otherwise. Therefore, the opposite parties 1 and 2, in our opinion cannot be made liable in this case.

            10.  The vehicle was admittedly purchased on 08.11.2013 by the complainant from opposite party No.1 along with temporary registration number, that the complainant has paid the entire cost of the vehicle that is Rs.7,42,340/- as road price inclusive of other taxes i.e. including excise duty. Later the complainant made his representation under Ex.A10 dt:18.12.2013 i.e. more than one month after purchase. Though the learned counsel for the complainant filed Ex.A12 Notification.12(35)/2007-AE1, Government of India, Ministry of Heavy Industries & Public Enterprises, Department of Heavy Industry, AEI Section dt:   March 2007, according to Ex.A12 supply of car for physically handicapped customers on concessional rate of excise duty can be availed. There is no dispute with regard to this G.O. Ex.A13 is a Disability Certificate issued by Dr.Brahmanandam, MBBS, DGO. The learned counsel for complainant filed Ex.A.18 Notification, it is a incomplete document, we cannot find serial numbers 13 to 26 and serial numbers 31 onwards, so this cannot be considered. As per Section-11B of Central Excise Act 1944, 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 Section-12A as the applicant may furnish to establish that the amount of duty or 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. So, it clearly reveals that if the complainant wants to claim refund of the excise duty, he has to make an application to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, along with the certificates and documents mentioned in Section-12A of the Central Excise Act i.e. 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, sales 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. But so far no such documents were furnished to this Forum by the complainant or even by the opposite parties. No application claiming the exemption of excise duty either before purchasing the vehicle or at the time of purchasing the vehicle was made by the complainant. In Ex.A5 From C.R.Tem, Ex.A6 Tax Receipt did not disclose quantum of excise duty collected from the complainant. The vehicle is purchased by the complainant that is to be driven by him personally, but no driving licence or other documents as called for are filed before the opposite parties or even before this Forum. As per Section-11A of the Central Excise Act 1944 any person wants to claim refund of the excise duty already paid shall made his application to Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, but no such application was made by the complainant. Under the above circumstances, we are of the opinion that the relief sought for by the complainant is not within the scope of Sections-12 and 14 of C.P.Act. Accordingly this point is answered.

            11.  Point No.(iii):- to answer this point, we have to state that the complainant since already paid the entire cost of the vehicle including tax and taken delivery of the vehicle on 08.11.2013 without making any application including for exemption of the excise duty over the vehicle he purchased. If the complainant paid the excise duty on protest, that will be a different aspect to be considered, but the complainant did not do so, only he has made his application for refund of the excise duty on 19.12.2013 that is more than one month ten days after purchase of the vehicle. Though the notification under Ex.A12 and another notification under Ex.A18 shows that complainant is entitled for exemption of excise duty, he ought to have made claim before purchasing the vehicle. If he wants to claim refund of such excise duty, he has to make an application to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, seeking refund of the excise duty paid by him along with relevant documents as contemplated under Section-11A and 12A of Central Excise Act 1944, but he has not exhausted the remedies available in the Central Excise Act. Since the relief sought for by the complainant is not covered by Sections-12 and 14 of C.P.Act 1986, we are of the opinion that the complainant is not entitled to the relief sought for. Accordingly, this point is answered.

            12. Point No.(iv):-  in view of our holding on points 1 to 3, we are of the opinion that complaint is devoid of merits and complainant is not entitled to the reliefs sought for and complaint therefore is liable to be dismissed.

            In the result, the complaint is dismissed. No costs.   

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 3^rd day of July, 2015.   

 

        Sd/-                                                                                                                     Sd/-                                                               

Lady Member                                                                                                      President

 

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant.

 

PW-1: Muppalla Venkateswara Rao (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite Party.

 

RW-1: T.A. SomeswaraKumar  (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT

 

Exhibits (Ex.A)	Description of Documents
	A Photo copy of physically handicapped certificate issued by the Medical Board, Gandhi Hospital, Secunderabad to M.VenkateswarRao  complainant. Dt: 06-01-1996.
	A photo copy of office order posting the complainant as Assistant Manager, in Tirupati Cotton Mills Ltd. Dt: 25-05-2011.
	A photo copy of price list of Honda cars showing VXAT on road price for Rs.7,42,340/-. Dt: 14-10-2013.
	A original copy of Vehicle sale invoice for Brio 1.2 VXAT for Rs.5,45,938/-+ VAT Rs. 79,162/- totaling Rs.6,25,100/-. Dt: 08.11.2013.
	A Photo copy of temporary registration certificate as AP26UGTR6495. Dt: 08.11.2013.
	A Photo copy of Tax receipt for Rs.75,270/- towards registration charges issued by the Transport department. Dt: 08.11.2013.
	A Photo copy of copies of 5 receipts totaling for Rs.7,42,350/- towards cost of the vehicle. Dt: 08.11.2013.
	A Photo copy of Insurance certificate for the ID Value Rs.5,93,845/-. Dt: 08.11.2013
	A Photo copy of Registration Certificate issued by the Transport authority as AP03PF2064. Dt: 21.11.2013
	Letter by the complainant to the opposite party No.2 against the opposite party No.1 regarding sale of the vehicle. Dt: 18.12.2013.
	Copy of legal notice to opposite parties 1 & 2. Dt: 25.01.2014.
	A Photo copy of circular No.12(35)/2007 -AEI of government of India, Ministry of Heavy Industries and Public Enterprises to all manufacturers of passenger cars.
	A True copy Certificate issued by the Manufacturer of Honda Cars in favour of the complainant. Dt: 30.01.2014.
	A Photo copy of representation to the Deputy Secretary to Government of India, Department of Heavy Industries and Public Enterprises, along with affidavit and medical certificate. Dt: 10.03.2014.
	A True copy Certificate issued by Government of India, Department of Heavy Industries and Public Enterprises to the complainant. Dt: 07.05.2014.
	Letter to the opposite party No.2 by the complainant. Dt: 18.05.2014.
	Office copy of legal notice to opposite parties 1 & 2. Dt: 04.07.2014,
	A Photo copy of Extract of condition No. 28 under notification No.12/12 Central Excise. Dt: 17.03.2012.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTYs

 

Exhibits   (Ex.B)	Description of Documents
1.	A Photo copy of E-mail addressed to the opposite party No.1 by the complainant and the return mails to the complainant issued by the opposite party No.1. Dt: 26.12.2013.
2.	A photo copy of Letter of Authority Dt. 08.01.2014 issued by Honda Cars India Private Limited.
3.	A Photo copy of Certificate issued by automotive research association of India. Dt: 21.03.2013.
4.	A photo copy of Notification No.12/2012-Central Excise, Issued by ministry of Finance, Government of India. Dt: 17.03.2012.
5.	A photo copy of Renewal of Dealership agreement Dt.31.03.2013.

 

 

                                                                                                                                                                                                                                                                                     Sd/-

                                                                                                                President

 

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

                Dist. Consumer Forum-II, Tirupati.

 

 

 

Copies to:-     1. The Complainant.

                        2. The opposite parties.