DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No. 120 of 2017 Date of institution: 14.02.2017 Date of decision : 27.09.2017
Kulwinder Singh son of Late Charanjit Singh, resident of Kothi No.86, Phase-6, SAS Nagar, Mohali.
……..Complainant
Versus
Pizza Hut, SCO 10, Phase-5, Mohali through its Incharge/MD/Manager.
………. Opposite Party
Complaint under Sections 12 of
Consumer Protection Act, 1986.
Quorum
Shri Ajit Pal Singh Rajput, President
Shri Amrinder Singh Sidhu, Member
Mrs. Natasha Chopra, Member
Present: Shri Raghubir Singh, counsel for the complainant.
Opposite Party ex-parte.
ORDER
By Ajit Pal Singh Rajput, President
Complainant Kulwinder Singh has filed the present complaint against the Opposite Party (hereinafter referred to as the OP) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The complainant on 31.01.2017 had telephonically ordered the OP for delivery of pizza at his office. The OP had issued invoice for Rs.420/- which includes Rs.49.91 as VAT @ 14.3% and Rs.20.93 as Service Tax @ 6%. The complainant had raised objection regarding charging of service tax and the complainant had not visited the shop of OP. The complainant also informed the OP regarding clarification of the Department of Service Tax and Excise Division to the effect whether service tax is payable on food sold by way of pick up or home deliveries. However, the OP stated that they are bound to follow the instructions of their management and if the service tax is not paid by the complainant, pizza would not be delivered to him. The complainant had to pay Rs.420/- for taking the delivery of pizza. The complainant has alleged that charging service tax is unfair trade practice on the part of the OP. Hence this complaint for giving directions to the OP to furnish any such notification or regulation favouring such practice of charging service tax on items which are delivered or pick up; to refund him the Rs.20.93 with interest charged on account of service tax; to pay him Rs.4,00,000/- for harassment and mental agony Rs.75,000/- as litigation costs and to place on record the detail of sale made after 13.08.2015 and service tax collected on take away/delivery and order them to return the same to the actual customers or to deposit the same in the Legal Fund Account.
3. Notice sent by this Forum was received by Shri Shivam, Manager of the OP but and none having appeared for it, the OP was proceeded against ex-parte vide order dated 28.04.2017.
4. In order to prove the case, the counsel tendered in evidence affidavit of the complainant Ex.CW-1/1 and copies of bill Ex.C-1 and order dated 13.08.2015 Ex.C-2.
5. The learned counsel for the complainant has argued that the as clarified by the Central Excise & Service Tax Division, Chandigarh vide letter dated 13.08.2015 Ex.C-2, service tax is not to be charged on the pick up or the home deliveries of food sold by the restaurant. He has further argued that the OP was not entitled to charge service tax of Rs.20.93 on the food ordered by the complainant telephonically, delivery of which was made at his office. Learned counsel has thus prayed for allowing the complaint.
6. After hearing the learned counsel for the complainant and going through the pleadings, evidence and the written as well as oral submissions, it is established from the material placed on record i.e. bill Ex.C-1 that the OP has charged service tax amounting to Rs.20.93 whereas as per the clarification dated 13.08.2015 Ex.C-2 by the office of Deputy Commissioner, Central Excise & Service Tax Division, Chandigarh the service tax on the pick up or the Home deliveries of the food sold by the restaurant cannot be charged. The relevant portion of clarification dated 13.08.2015 Ex.C-2 is reproduced as under:
“It is clarified that in case of the transaction involving Pick up or the Home Deliveries of the food sold by the Restaurant, the dominant nature of the transaction is that of sale and not service as the food is not served at the Restaurant and further no other element of service which is offered at the restaurants, be ambience, live entertainment, if any, air conditioning or personalized hospitality is offered. The service tax can be levied if there’s an element of ‘service’ involved which would typically the case where food is served in restaurant.”
The OP has failed to appear in this Forum despite receipt of the notice sent by this Forum. The whole purpose of pleadings is to give fair notice to each party of what the opponent’s case is and to ascertain with precision the point(s) on which the parties argue and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never put forward in pleadings. As such, the evidence adduced by the complainant remains unrebutted.
7. Accordingly, in view of our aforesaid discussion and the clarification dated 13.08.2015 Ex.C-2, we find that charging of service tax by the OP is unfair trade practice and deficiency in service. Hence we direct the OP to refund to the complainant Rs.20.93 (Rs. Twenty and paise ninety three only) and to pay him a lump sum compensation of Rs.10,000/- (Rs. Ten Thousand only) for mental agony, harassment and costs of litigation. The present complaint stands partly allowed.
The OP is further directed to comply with the order of this Forum within 30 days from the date of receipt of this order failing which the amount of compensation shall carry interest @ 9% per annum from the date of decision till actual payment.
The arguments on the complaint were heard and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated: 27.09.2017
(A.P.S.Rajput)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
