BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.376 of 2015
Date of institution: 29.07.2015
Date of Decision: 25.04.2016
1. M/s. Durga Distributions, Siswan Road, Near Ice Factory, Kurali through its Prop. Vishal Sharma.
2. Vishal Sharma s/o Charan Dass Sharma, resident of House No.25, Ward No.10, Kurali, District Mohali, Prop. Of M/s. Durga Distributions.
……..Complainants
Versus
1. State Bank of Patiala, Morinda Road, Kurali, District Mohali through its Branch Manager.
2. State Bank of Patiala, Head Office at Sheran Wala Gate, Near Kali Mata Mandir, Mall Road, Patiala through its Zonal Manager.
3. Kharar Treasury through its Treasury Officer, Tehsil Complex, Kharar.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Vivek Dawar, counsel for the complainants.
Shri Gurjas Pal Singh, counsel for OP Nos.1 and 2.
Shri Kulwinder Singh, counsel for OP No.3.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant No.1 who is a Proprietorship Firm has filed the present complaint through its Proprietor complainant No.2 seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
- Pay them the amount of service tax of Rs.1,57,172/- deposited on 30.08.2012 alongwith interest @ 30% per annum w.e.f. 30.08.2012 till actual payment.
- Pay them service tax of Rs.38,114/- deposited on 05.10.2012 alongwith interest @ 30% per annum w.e.f. 05.10.2012 till actual payment.
- Pay them Rs.1,00,000/- on account of deficiency in service, mental and physical harassment.
- Pay them litigation expenses to the tune of Rs.20,000/-.
The complainant is engaged in providing services to its customers on behalf of mobile company M/s. Idea Cellular Limited. The complainant No.1 was appointed as Prepaid Distributor of E-Top Up, paper recharge coupons and Sim cards by idea vide appointment letter dated 04.07.2011. For promotion/marketing or sale of the -Top Up, paper recharge coupons and Sim cards, complainant No.1 is paid incentives, commission margin etc. from time to time. Service tax under Section 66 of Finance Act was chargeable on the payments received from Idea for which the complainants are registered with Service Tax Department under registration code No.BSQPS9025LSD001. The complainants deposited with OP No.1 service tax of Rs.1,57,172/- on 30.08.2012 for various periods upto June, 2012. Service tax of Rs.38,114/- for the period from July, 2012 to September, 2012 was deposited by the complainants with OP No.1 on 05.10.2012. A certificate dated 14.03.2013 was also issued by OP No.1 regarding receipt of above payments of service tax. The complainants received show cause dated 21.02.2012 from the office of Deputy Commissioner, Central Excise Division, Ropar that they have not deposited the service tax from July, 2011 till June, 2012 which was amounting to Rs. 1,46,953/- plus interest of Rs.10,578/-. The complainant submitted reply dated 21.03.2014 to the legal notice. The complainant also enquired from OP No.1 regarding deposit of service tax, who asked them to visit OP No.3. From OP No.3 the complainants came to know that the service tax against assessee code No. BSQPS9025LSD001 was erroneously deposited under Sales Tax Head 0040 due to some clerical error. After consistent follow up with the OPs, District Treasury Officer, SAS Nagar Mohali issued letter dated 03.01.2014 regarding correction of account. Due to wrong deposit of service tax under head No.0040 instead of 0044 wrongful loss has been caused to the complainant. The Deputy Commissioner Central Excise Division, Ropar vide order dated 28.01.2015 has imposed penalty of Rs.1,46,594/- on account of non deposit of service tax plus interest on the complainants. However, the appeal filed against this order is pending with the Commissioner of Central Excise. The complainant sent legal notice dated 10.04.2015 asked the OPs to pay a sum of Rs.1,57,172/- but till date refund has not been made by the OPs. OP No.1 replied to the legal notice by stating that the fault lies with OP No.3. Thus, with these allegations the complainant has filed the present complaint.
2. OP No.1 and 2 in their joint written statement have pleaded that the complainant was told that as per procedure the amount was sent to Kharar Treasury and the treasury deposited the amount in a wrong head which is not the fault of the OP Nos.1 and 2. The District Treasury Officer requested the Accountant General Punjab vide letter dated 03.01.2014 that the challans of service tax were booked under head of account 0040 of Sales Tax erroneously and requested to correct the same. Thus, denying any deficiency in service or unfair trade on their part, OP No.1 and 2 have sought dismissal of the complaint.
3. OP No.3 in the preliminary objections of its written statement have pleaded that the complainants are not under the Consumer Protection Act as no consideration was paid or promised or partly paid to OP No.3 by the complainants. The complainant No.1 is a firm which is working with Idea Cellular service for earning profits in the business which is not covered under Section 2 (d) of the Consumer Protection Act. This Forum also does not have pecuniary jurisdiction to try the complaint. No legal notice was given to the OP No.3 before filing the present complaint. On merits, it is pleaded that the complainant approached OP No.3 and after verification of record it was found that OP No.1 inadvertently put the service tax amount of the complainant (head 0044) in the account of respondent No.3 under the sale tax head (0040). OP No.3 after verification from OP No.1 gave letter to the complainant for rectification in the account addressed to AG Punjab. As per the information of OP No.3, the amount of Rs.1,95,286/- (Rs.1,57,172/- + Rs.38,114/-) was already adjusted in the account of the complainant on 11.07.2014. The cause of action arose to the complainant on 05.10.2012 and the complaint was filed on 29.07.2015 after delay of 10 months. Thus, denying any deficiency in service or unfair trade practice on its part, OP No.3 has sought dismissal of the complaint.
4. To succeed in the complaint, the complainants proved on record affidavit of complainant No.2 Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-14.
5. Evidence of OP No.1 and 2 consists of affidavit of Ms.Seema, their Branch Manager Ex.OP-1/1.
6. Evidence of OP No.3 consists of affidavit of Sohanjit Singh Treasury Officer Ex.OP-3/1 and copies of documents Ex.OP-3/2 to Ex.OP-3/4.
7. We have heard learned counsel for the parties and gone through the written arguments filed by them.
8. The deposit of amount of Rs.1,57,172/- by the complainant on 30.08.2012 as service tax with OP No.1 is not disputed. The said service tax as per OP No.1 was transferred in the Govt. Treasury i.e. OP No.3 and OP No.3 inadvertently booked the amount under another head, therefore, the complainant could not get the benefit of deposited amount under the service tax and as a result being in default it has to face to prosecution having been launched against it by Central Excise Division, Ropar. Though subsequently, the OP No.3 has rectified the erroneous entry and accounted the amount under the appropriate head ‘service tax’. Still, as per the complainant due to the acts of omission and commission of OP No.3, the Central Excise Tax Commissioner has imposed a penalty of Rs.1,46,594/- on account of non deposit of service tax plus interest as per orders dated 28.01.2015 Ex.C-11. The complainant has filed an appeal against the said order and the same is pending.
9. The limited question for determination in the present case is whether the complainant is a consumer of the OPs as per Consumer Protection Act, 1986 and the OPs have been found rendering deficient services to the complainant causing him mental agony and financial loss.
10. In order to answer the above question, it will be appropriate to look into the preliminary objection raised by OP No.3. As per OP No.3 the complainant is not a consumer of the OP as it has not availed any paid services from the OP No.3 and as per OP No.1 and 2 since OP No.3 has admitted erroneous entry of the deposited amount under a different head other than the service tax, therefore, the complainant is not its consumer. As per the Consumer Protection Act, for a complainant to come under the ambit of ‘consumer’, the complainant has to show that he has bought any goods or availed services for consideration. In the present case, the complainant has admittedly deposited the statutory service tax with OP No.1 and 2 who have not charged any amount for rendering such services to the complainant as there is nothing on record from either of the sides. The OP No.3 has though admitted having accepted the amount from OP No.1 and 2 under head service tax account 0044 but inadvertently has put the said amount under head sales tax account 0040. Acceptance of said amount from OP No.1 and 2 by OP No.3 on behalf of complainant again does not show any availment of paid service or payment of consideration by the complainant to OP No.3. Thus, the complainant has availed the services of the OPs without payment of any consideration and, therefore, the complainant does not fall under the ambit of definition of consumer as defined under Section 2 (1) (d) of the Consumer Protection Act. The objection so raised by the OPs is, therefore, decided in favour of the OPs.
11. Since the complainant is not a consumer of the OPs, therefore, the complaint is not maintainable before this Forum and is hereby returned to the complainant alongwith original documents with the liberty to avail its remedy available before the appropriate forum/authority, if so advised. Office is directed to retain a copy of the complaint and documents for record. Papers be consigned to the record room.
Pronounced.
April 25, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
