BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.            

                                                          Consumer Complaint no. 168 of 2019                                                                        

                                                         Date of Institution         :    08.04.2019

                                                          Date of Decision   :    07.11.2019.

Neeraj Kumar aged about 40 years son of Sh. Radhe Shyam, resident of House No.5010,  Ward No.9, Deepak Katla, Ellenabad, Teh. Ellenabad, Distt. Sirsa.

                      ……Complainant.

                             Versus.

1. Shakti Motors Private Limited, Dabwali Road, Sirsa, Teh. and Distt. Sirsa (Maruti Suzuki Authorized Dealer), through its authorized person.

2. Assistant Commissioner, CGST, Division, Sirsa, Teh. and Distt. Sirsa.

  ...…Opposite parties.

            Complaint under Section 12 of the Consumer Protection Act,1986.

Before:        SH. R.L.AHUJA…………………………PRESIDENT

SH. ISSAM SINGH SAGWAL …… MEMBER.

SMT. SUKHDEEP KAUR……….. MEMBER  

Present:       Sh. D.L. Gupta,  Advocate for complainant.

                   Sh. S.K. Puri, Advocate for opposite party no.1.

Sh. N.R. Majok, Assistant Commissioner on behalf of opposite party      no.2.

ORDER

                   The case of the complainant in brief is that complainant is a Government employee and is also 60% physically handicapped. That the Ministry of Heavy Industries and Public Enterprises, Department of Heavy Industry, Government of India (hereinafter called as concerned Ministry of Government of India) has provided the concessional rate of Goods and Service Tax on cars for physically handicapped persons vide SI No.400 of Notification No.1/2017-Intergrated Tax (Rate) dated 28.6.2017. It is further averred that to take the benefits of GST concession for the vehicle without any retro-fitment, a person with physical disability shall be required to submit an application in prescribed format with disability certificate and with self certificate to the Under Secretary (AEI Section), Department of Heavy Industry, Room No.428, Udyog Bhawan, New Delhi that he has not availed this concession in the last five years and he will not dispose of the vehicle after availing GST concession for a period of five years. It is further averred that complainant moved an application for issuance of certificate in respect of an orthopedically disabled person for the purpose of GST concession as per Notification No.1/2017-Intergrated Tax (Rate) dated 28.6.2017 for the purchase of vehicle, alongwith disability certificate, self certificate, an affidavit and the certificate issued by Road Transport Officer that the complainant is capable to drive Maruti Suzuki Vitara (Breeza) and upon the application of complainant, the concerned Ministry of Government of India issued certificate dated 19.6.2018 that Car Maruti Suzuki Vitara (Breeza) is capable of being used by physical handicapped persons and the same is issued on the application of complainant and for purpose of GST item 8703 para (a) as per Notification No.1/2017- Intergrated Tax dated 28.6.2017 and on 20.6.2018, the concerned Ministry of Government of India issued letter in favour of complainant for the purpose of availing GST concession on the purchase of above said car. That complainant booked the said car on 17.5.2017 with op no.1 and paid a sum of Rs.21,000/- to op no.1. It is further averred that as per booking of complainant, the op no.1 called the complainant to take the car and he went to the office of op no.1 and paid a sum of Rs.7,86,139.95 being the price of said Car and complainant shown the notification to the authorized signatory of op no.1 and requested to give the rebate/ concession in the GST as per notification dated 28.6.2017, but the authorized signatory of op no.1 refused to give rebate/ concession to complainant in the GST and received 28% GST instead of 18% intentionally and malafidely and told the complainant that this is matter between him and Central Government and can apply for the refund of GST, though it is the duty of the authorized signatory of op no.1 to give the rebate/ concession at the time of purchase of car in question. The complainant paid 28% GST under protest and took the possession of car in question and got insured the same through op no.1 in which op granted rebate/ concession for the vehicle in question designated for handicapped. That after purchase of car, the complainant requested op no.1 for applying the registration certificate after granting rebate/ concession of Rs.36,000/- to the complainant being handicapped person, but op no.1 refused for the same. But Registering Authority, Ellenabad granted the rebate/ concession of Rs.36,000/- to the complainant. It is further averred that thereafter, the complainant moved an application to op no.2 for refund of 10% GST and on the application, the complainant was called for hearing on 25.10.2018 through notice/ vide letter dated 8.10.2018 and also directed to furnish reply to this notice. The complainant filed reply to the notice/ letter, but Assistant Commissioner, CGST Division, Sirsa rejected the refund application of complainant vide order No.R-08/ GST/Neeraj?AC/Sirsa/ 2018-19 dated 30.10.2018. It is further averred that due to non granting the rebate/ concession of 10% GST to complainant by op no.1 as per notification dated 28.6.2017, the price of car in question comes to Rs.10,29,843.32 i.e. more than Rs.10,00,000/- for which complainant suffered loss of TCS of Rs.10,298/- i.e. 1% of total price of car in question, Rs.6350/- being extra fees of registration charges at the time of applying of registration certificate. The complainant also suffered loss of Rs.78,614/- being 10% of GST rebate/ concession. That complainant several times approached and requested the ops to admit his claim, but to no effect and due to act and conduct of the ops, the complainant has suffered great mental pain, agony and financial loss. The complainant is legally entitled to the amount of Rs.95,262/- alongwith interest at the rate of 18% per annum and is also entitled to compensation of Rs.1,50,000/- besides special costs of Rs.40,000/- from ops. Hence, this complaint.   

2.                On notice, opposite parties appeared. Op no.1 filed written statement taking certain preliminary objections. It is submitted that complaint is neither maintainable nor sustainable in the present form as no consumer dispute in between the complainant and replying op is made out. The complainant has filed his claim regarding the rebate in the GST payable on the car purchased by complainant, however, the concession in the rate is the matter concerned with op no.2 and same is not concerned with replying op, hence complaint qua replying op is liable to be dismissed on this score alone. It is further submitted that complaint is bad for mis joinder of the parties, because the replying op has been falsely involved in this case. The op no.1 is only the service provider to the complainant’s car being authorized agency of Maruti Suzuki India Limited and as per norms of the company, the replying op has to provide the service qua the routine checkup and monthly/quarterly service of the vehicle within guarantee/ warrantee period and except this, the replying op has no involvement in the alleged dispute. Other preliminary objections regarding no locus standi, concealment of true and material facts, no cause of action are also taken. On merits, while denying the contents of complaint for want of knowledge, it is submitted that booking of car was done by replying op being the authorized agency of company but the fact remains that concession or rebate in the GST is the matter in between the Govt. of India and the manufacturing company. The complainant failed to even implead the manufacturing company as party to the complaint. It is further submitted that registration certificate of the car was applied by replying op in discharge of their liability being the company undertaking for the said service, but the factum of rebate in GST as per the notification is not within exercising powers of the replying op, hence op no.1 is not bound for the same. These all facts were also conveyed to the complainant very well but despite this, he has filed this frivolous complaint. Remaining contents of complaint are also denied and prayer for dismissal of complaint made.

3.                Op no.2 filed separate written statement taking certain preliminary objections that present complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed as such. The processing of refund claim was without any consideration and free of charge. That this Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and does not fall within the ambit of the provision of the Consumer Protection Act, 1986 and is exclusively appealable with the competent authority and as such complaint is liable to be dismissed summarily on this score alone and that complaint is bad for non joinder of necessary and proper party. On merits, it is submitted that complainant could have filed appeal to the competent authority. The body of the rejected order itself specifies that an appeal to the order lies under section 107 of the CGST Act 2017 read with rule 108(1) of the CGST rules. The jurisdiction is barred under Section 162 of the CGST Act. Remaining contents of complaint are also denied to be wrong.

4.                The parties then led their respective evidence.

5.                We have heard learned counsel for complainant, learned counsel for op no.1 and Sh. N.R. Majok, Assistant Commissioner on behalf of op no.2 and have perused the case file carefully.

6.                The complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A in which he has deposed and reiterated all the averments made in the complaint. He has also furnished copy of office order Ex.C1, copy of application format for issuance of certificate Ex.C2, copy of medical certificate Ex.C3, copy of self certification Ex.C4, copy of affidavit Ex.C5, copy of certificate dated 19.6.2018 Ex.C6, copy of letter dated 20.6.2018 Ex.C7,  copy of invoice Ex.C8, copy of sale certificate Ex.C9, copy of form 22 Ex.C10,  copy of certificate cum policy schedule Ex.C11, copy of registration certificate Ex.C12, copy of slip of State Transport Department, Ellanabad Ex.C13, copy of application for refund of GST Ex.C14, copy of notice/ letter Ex.C15, copy of reply to notice Ex.C16, copy of refund rejection order Ex.C17, copy of voter card Ex.C18, copy of ration card Ex.C19, copy of driving licence Ex.C20 and copy of certificate Ex.C21. On the other hand, op no.1 produced affidavit of Sh. Raj Kumar Goyal, Manager as Ex.RW1/A. Sh. N.R. Majok, Assistant Commissioner suffered a statement that written statement filed on behalf of op no.2 be read as evidence.

7.                The complainant has filed the present complaint with the averments that he is entitled to take benefit of GST concession for the vehicle without any retro-fitment being a handicap and he has not availed this concession in the last five years and further he will not dispose of the vehicle after availing GST concession for a period of five years as per instructions and concession granted by Ministry of Heavy Industries and Public Enterprises, Department of Heavy Industry, Government of India. The complainant has purchased a vehicle i.e. Breeza car from op no.1 on production of requisite documents including physical disability certificate, notification issued by the concerned Ministry of Government of India and self certification and the letter issued by the aforesaid Ministry in favour of complainant for the purpose of availing GST concession for purchasing of car. It is admitted fact between parties that complainant has purchased this vehicle from op no.1 vide sale invoice Ex.C8, but however, op no.1 did not honor the notification and certificate issued by concerned Ministry and charged GST from the complainant at the rate of 28%. The payment was made by complainant after availing loan from the concerned bank. It has been alleged by complainant that due to non granting of rebate/ concession of 10% by op no.1 at the time of purchase of car in question as per notification dated 28.6.2017, price of vehicle became Rs.10,29,843.32 i.e. more than Rs. ten lacs and due to this price of more than Rs. ten lacs, complainant suffered loss of TCS (Tax collection at source) of Rs.10,298/- i.e. 1% of total price of the car in question, Rs.6350/- being extra fees of registration charges at the time of applying of registration certificate and complainant also suffered loss of Rs.78,614/- being 10% of GST rebate/ concession and thus, he has suffered total loss of Rs.95,262/-.

8.                The perusal of Ex.C1 relied upon by complainant reveals that GST at the rate of 18% was to be charged on the vehicle purchased by physically handicapped persons subject to following conditions:

                   a) an officer not below the rank of Deputy Secretary to the Government of India in the Department of Heavy Industry certifies that the said goods are capable of being used by the physically handicapped persons; and

                   b) the buyer of the car gives an affidavit that he shall not dispose of the car for a period of five years after its purchase.

                   The complainant has produced disability certificate duly issued by board of doctors of Civil Hospital, Sirsa as Ex.C3, self certification by the applicant as Ex.C4, copy of his affidavit Ex.C5, certificate issued by concerned Ministry Ex.C6 and GST concession certificate issued by Ministry as Ex.C7. These all documents show that complainant was entitled to pay only 18% of GST to the dealer i.e. op no.1 qua purchase of vehicle, but however, op no.1 has charged 28% GST from the complainant.

9.                It is also proved on record from Ex.C13 that while calculating amount of registration certificate, rebate of Rs.36,000/- in MV Tax has been given to the complainant by State Transport Department, Ellenabad while preparing registration certificate which are also got issued by op no.1. The liability of complainant was only to pay GST at the rat eof 18%, but however, op no.1 has charged GST at the rate of 28% and complainant has claimed difference of this amount to the tune of Rs.78,614/-. So, it appears from the evidence on record that complainant is entitled to refund of this amount.

10.              During the course of arguments, learned counsel for complainant has contended that he had applied for refund of this amount to op no.2, but however, same was declined vide order dated 30.10.2018 Ex.C17 and Sh. N.R. Majok, Assistant Commissioner who appears in the Forum personally has contended that since complainant is not a assessee and licensee under the GST, nor he has got registration with GST department, as such he cannot get benefit of the rebate and only the person who is a assessee and licensee under GST can claim refund, if amount is refundable in accordance with law. He has further contended that only Shakti Motors i.e. op no.1 which has deposited the amount can apply for refund of GST, if any. Sh. S.K. Puri, learned counsel for op no.1 has strongly contended that no doubt, the op no.1 has charged GST as per prevailing rate of GST and has not charged excess amount but even then if this Forum comes to the conclusion that any excess amount has been charged and deposited by op no.1 on account of GST with GST authority then in case of any order of refund, op no.1 should be vested with right to recover same from GST department. It is proved on record that liability of complainant to pay GST was to the extent of 18%, but however, GST at the rate of 28% has been charged from complainant and as such complainant deserves to be entitled for refund of amount of Rs.78,614/- alongwith other expenses.

11.              In view of our above discussion, we allow this complaint against op no.1 and direct the opposite party no.1 to make refund of amount of GST of Rs.78,614/- as well as excess amount of charges of tax and registration fee etc. within a period of 30 days from the date of receipt of copy of this order, failing which op no.1 shall be liable to pay interest @7% on the total payable amount from the date of order till actual payment. We further direct the op no.1 to pay a sum of Rs.5000/- as composite compensation and litigation expenses to the complainant. However, opposite party no.1 is entitled to recover this amount of difference of GST by applying for refund of the same to the GST department, if same is payable in accordance with law. Further, op no.1 is also entitled to get recover other amounts of tax and registration fee etc. from the competent authorities by applying for refund of the same. However, complaint against op no.2 is dismissed. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.               

Announced in open Forum.                                                                   President,

Dated:07.11.2019.                        Member           Member      District Consumer Disputes

                                                                                                         Redressal Forum, Sirsa.