Haryana

Ambala

CC/270/2018

Jagmal Singh - Complainant(s)

Versus

Smrithi Motors Pvt Ltd - Opp.Party(s)

S.Khatkar

04 Sep 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint Case No.: 270 of 2018.

                                                          Date of Institution         :  21.08.2018.

                                                          Date of decision   :  04.09.2019.

 

Jagmal Singh s/o Shri Kabal Singh, aged about 66 years, r/o H.No.263, Vashisht Nagar, Post Office Babyal, Ambala Cantt.

……. Complainant.

                                                       Versus

 

1. Smrithi Motors Pvt. Ltd., Ambala Jagadhari Road (SH-5), VPO Tepla (Auto Hub), Ambala through its Owner/Manager.
2. Hyundai Motors India Ltd., Regional Office- Unit C113-114, Elante Mall, Plot No.178-178A, Phase-1, Chandigarh-160002.

             ….…. Opposite Parties.

 

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.                 

                            

Present:       Shri Shamsher Khatkar, Advocate, counsel for the complainant.

Shri Vishal Mittal, Advocate, counsel for the OP No.1.

Shri Amrit Pal, Advocate, counsel for the OP No.2.

 

Order:        Smt. Neena Sandhu, President.

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To refund the tax amount collected by the OP No.1 in excess of what was legally permissible under the Physically Handicapped Category alongwith interest @ 18 % from 16.01.2018 till actual date of payment.
2. To pay Rs.1,00,000/- as compensation for the mental agony and physical harassment suffered by him.
3. To pay Rs.11,000/- as litigation charges.

 

Brief facts of the case are that the complainant is a senior citizen and retired from Education Department of Government of Haryana. He is having physical disabilities i.e. P.P.R.P. with weaken (left) lower limb and weaken (right) lower rib to the extent of 65% since year 2009, which is permanent in nature. Thus, he is unable to drive comfortably any vehicle with manual transmission. The OP No.1 is authorized dealer of OP No.2 for sale and service of Hyundai Motors in Ambala and OP No.2 is Regional Office of Hyundai Motors for North Region of India. The Government of India, Ministry of Heavy Industries & Public Enterprises, Department of Heavy Industry, AEI Section, Udyog Bhawan, New Delhi had a policy for supply of car for physically handicapped customers on concessional rate of excise duty since 1998 and same policy has been made applicable even after passing of the Goods and Services Tax (GST). Govt. of India has issued Revised Guidelines for issuance of GST concession certificate for purchase of vehicles by the Persons with Physical Disability vide its Office Order dated 01.05.2018 and Govt. has provided 10% concession in the GST and other cesses as applicable. In February, 2013, the complainant had purchased a new car from the OP No.1 make Hyundai, Model I-10, bearing Registration No.HR-01AG-6667, Chassis No.448296, Engine No.089222 with Automatic Transmission for his personal use and had availed Excise Duty/Tax Concession as applicable in the year 2013, under the Physically Handicapped Person’s Category. In the first week of December, 2017, the sales representatives of OP No.1 approached the complainant and told him that he has become entitled for Tax Concession under GST, on purchase of new car under the physically handicapped category, as the period of five years is about to be completed within one month i.e. in January, 2018 from the date of purchase of previous car. He agreed to purchase a new car from the OP No.1 under physically handicapped category and booked a new Verna SX+ AT CRD by paying Rs.1,00,000/- in cash vide receipt No.26983 dated 09.12.2017. Further, the OP No.1 also took the delivery of I-10 car from him on 15.12.2017 by stating that it has a customer, who wants to purchase the old car urgently and promised him to provide some other car with automatic transmission till the delivery of the new Verna Car. The complainant delivered his I-10 Auto car to OP No.1. It provided first old Nano car and after that, an old Honda City, both with manual transmission, which the complainant was unable to use, due to his physical disabilities. Hence, he had to hire taxi from the market for his personal use from 16.12.2017 to 16.01.2018. At the time of issuance of the invoice dated 16.01.2018, he informed the OP No.1 that he is entitled for concession in GST under the Physically Handicap Category and requested to provide the same. However, the OP No.1 informed that Tax amount would be refunded back to him after getting approval from the Regional Office i.e. OP No.2, as was done at the time of purchasing of I-10 car in the year 2013 by him. Believing that words of OP No.1, he paid the entire invoice amount and took the delivery of new Verna car with Automatic Transmission for his personal use. As advised by the OP No.1, he submitted an application alongwith all the requisite documents to the OP No.1 to forward to OP No.2, for refund of tax amount under Physically Handicapped Category. However, the OP No.2 rejected his claim by stating that benefits of Physically handicapped claim is to be passed on, in the invoice itself, as the procedure has changed after application of GST and no Physically Handicapped claim can be processed through Regional Office. It is pertinent to mention here that the Ministry of Finance has provided concession on the Goods and Service Tax for the purchase of vehicle by the physically handicapped persons vide Sl No.400 of Notification No.1/2017 – Integrated Tax (Rate) dated 28^th June, 2017 and same has been circulated as Office Order by the Ministry of Heavy Industries & Public Enterprises, Department of Heavy Industry, AEI Section, Udyog Bhawan, New Delhi to the Indian Automobile manufacturers. Hence, it can certainly be assumed that both the OPs were in receipt of the above quoted letter of the Ministry of Finance. When the complainant approached the OP No.1 in this regard, it tried to put the blame on him that at the time of booking and during delivery process, he has not put up any handicap claim with it. He served a registered legal notice reference No.SK/102/2018 dated 14.06.2018 to OPs through his counsel, which was received by OP No.1, but OP No.2 refused to receive and the same has been returned to his counsel. Despite receipt of legal notice, the OP No.1 even did not bother to reply the same. Due to the negligency of the OPs, the complainant had suffered huge financial loss besides physical and mental harassment. Hence, the present complaint.

2                 Upon notice, OP No.1 appeared through counsel and filed written version and has raised preliminary objections regarding maintainability; locus-standi; jurisdiction and cause of action. On merits, it is stated that in his email dated 26.04.2018, the complainant had stated that the fact of deduction of handicapped claim at the time of issuance of invoice, was not in the knowledge of RO dealer and its official and thus, could not be disclosed to the complainant. When the complainant himself was not in knowledge of said rebate at the time of purchase of his car, then how he can had applied for the same at the time of purchase and delivery of the car. Furthermore, the complainant had not applied for concession in GST under the Handicapped category at the time of booking, purchase, delivery of vehicle, to the OP. The complainant had made application for the concession in GST under the Handicapped category on 07.03.2018 i.e. after the purchase of the vehicle on 16.01.2018. It had not misguided the complainant, as alleged. There is no deficiency in service on the part of the OP No.1 and the complaint filed by the complainant, may be dismissed with costs.

                   Upon notice, OP No.2 appeared through counsel and filed written version and has raised preliminary objections regarding maintainability; locus-standi; jurisdiction and cause of action. On merits, it is stated that the matter in dispute is between complainant and OP No.1. To avail tax benefit under Physically Handicapped category under GST, the consumer must have communicated with dealer before obtaining performa invoice that he/she is eligible for tax concession, then the consumer shall submit the original Medical Certificate to the dealer for obtaining Manufacturer Certificate. After obtaining the said Certificate, the consumer must approach Ministry of Heavy Industries, for obtaining certificate for availing concession of GST. After getting the Tax Certificate issued by Ministry of Heavy Industry, the consumer shall submit the same to the dealer alongwith other documents in order to avail the tax concession in retail invoice, issued by the dealer. In the present case, the said procedure was initiated after sale/purchase of the car, thus complainant could not get such tax concession. There is no privity of contract between the complainant and the OP No.2 and no money towards sale consideration of the vehicle was paid to the OP No.2. The discount, if any, as alleged by the complainant, was to be provided by the dealer. The liability of OP No.2 being the manufacturer of the car in question is limited and extends to its performance and warranty obligations only. Since the complainant has not raised any allegations regarding the performance of the car, no deficiency can be attributed against OP No.2. No application u/s 11 of the CP Act has been filed by the complainant alongwith this complaint to seek permission of this Hon’ble Forum to implead it as OP No.2 in the present complaint. Since, the OP No.2 has not committed any deficiency in service, therefore, the present complaint filed against it, may be dismissed with heavy costs.

3.                The ld. counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1 to C-19 and closed the evidence on behalf of complainant. On the other hand, the learned counsel for the OP No.1 has tendered affidavit of Shri Ashwani Kalra owner of OP No.1 firm as Annexure OP1/A alongwith document as Annexure OP1/1 and closed the evidence on behalf of OP No.1. The learned counsel for the OP No.2 tendered affidavit of Shri Varun Panta, Assistant Manager (Legal & Secretarial) of OP No.2 as Annexure OP2/A alongwith document as Annexure OP2/1 and closed the evidence on behalf of OP No.2.

4.                We have heard the learned counsel of the parties and carefully gone through the case file and also the written arguments alongwith case laws filed by the learned counsel for the OP No.2.

5.                The learned counsel for the complainant has argued that the complainant had purchased the car in question, vide Invoice No.G71000277644 dated 05.01.2018 for Rs.12,17,227/- from the OP No.1, manufactured by OP No.2. As per the Government policy, he being physically handicapped was entitled to get 10% concession on the GST. At the time of purchase of vehicle, the sale representative of OP No.1 told him to pay the total consideration amount of the car in question and he will get refund of excess amount of GST, after getting the approval from the OP No.2. Accordingly, the complainant paid the entire consideration amount including entire GST to the OP No.1. But after waiting for sometime, when the complainant did not get the refund of excess amount of GST, then, on the advice of OP No.1, he filed an application for refund of excess amount paid on account of GST, with the OP No.1, which forwarded the same to the OP No.2. But the OP No.2 rejected his claim by stating that benefits of physically handicapped claim has to be claimed at the time of issuance of invoice itself, as the procedure has changed after enforcement of GST and as such, no physically handicapped claim can be processed through Regional Office. At the time of purchase of car in question, the complainant was in possession of all the requisite documents. Had the OP No.1 disclosed about furnishing of documents with it to avail the concession in GST, then the complainant certainly could have furnished the requisite documents with it. The OPs by not giving tax benefits under physically handicapped category, have committed deficiency in service.

                   In rebuttal, the learned counsel for the OP No.1 has argued that no assurance was given by its official to the complainant regarding refund of the GST amount after the purchase of the car. At the time of purchase the car in question, the complainant neither applied for getting concession in GST nor submitted any documents to avail the tax benefits under physically handicapped category. Since the complainant himself was at fault, therefore, he cannot blame the OP No.1 for his own fault. There is no deficiency on its part, thus the complaint filed against it, may be dismissed with costs.

                   The learned counsel for the OP No.2 has argued that the matter inter se is between the complainant and the OP No.1. It has no privity of contract with the complainant. The OP No.2 operates with all its dealers including OP No.1 on “principal-to-principal” basis and if any error/omission/ misrepresentations etc., has been committed by any of its dealer, then, the sole responsibility is of the concerned dealer. The OP No.2 has not committed any deficiency in service, thus the complaint filed against it, deserves dismissal with cost.

6.                In Para No.4 of the Office Order dated 01.05.2018 (Annexure C-3), it is categorically mentioned that a person with physical disability, who wants to avail the benefit of GST concession, for the vehicle without any retrofitment, shall be required to submit following:-

1. An application in prescribed format.
2. A medical certificate from the medical officer of the Government Hospital in prescribed format.
3. Self-certification by the individual applicant stating that he has not availed this concession in the last five years and he will not dispose of the vehicle after availing the GST concession for a period of 5 years from the date of purchase in prescribed format.

                   Bare reading of the Notf.1/2017-CTAX and Notf.1/2017-Cess reveals that the said Notifications did not speak about whether the relevant certificate should be produced before the purchase of the car or after its purchase, neither it speaks about concession in respect of retrofitted or otherwise. The said Notifications impose only two conditions i.e. “requisite certificate from appropriate authority and an affidavit that the purchaser shall not dispose of the car for a period of five years after its purchase. It may stated here that the procedure for filing refund claim, is governed by sub-section 1 of section 54 of the GST Act, which permits any person, who bear the burden of ‘excess tax or any other amount paid’ to file refund claim before expiry of the two years in the manner as prescribed under the said Section.

7.                From the Invoice dated 05.01.2018 (Annexure C-12), the complainant had purchased the car in question from the OP No.1 by paying the full amount of GST. Thus, as per sub-section 1 of Section 54 of the GST Act, the complainant ‘being physically handicapped, is eligible for the refund of the excess amount of GST paid by him. Admittedly, the complainant had already filed an application for refund of the excess amount of GST and has also furnished all the requisite documents with the OP No.1, therefore, the OP No.1 shall refund the excess amount of GST, to the complainant, because, as per provisions of the GST Act, a dealer is entitled to correct its return of sale or service by filing annual return form GSTR-9/9-C. The annual return for the period of 2016-17 is due to be filed by 30.11.2019. The OP No.1 can rectify the return filed earlier, in which, it has shown sale of car made to the handicapped person to be taxable @ 28%. It can now rectify by declaring it taxable @ 18% and the excess amount can be claimed as refundable/adjustable against the current or future liability, from the GST department.

8.                In view of the aforesaid discussion, we dispose of the present complaint and direct the OP No.1 to refund the excess amount of tax charged from the complainant and claim the same from the GST department. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 04.09.2019.

 

          (Vinod Kumar Sharma)       (Ruby Sharma)                  (Neena Sandhu)

              Member                            Member                            President