BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.7/2014

Dated this the  27^th  day of March 2017

(Date of Institution: 22.01.2014)

Shankar, son of Arumugam                           

No.14,  Sami Mudaliar Street,             

Muthialpet, Puducherry.             

….     Complainant

vs

1. The Chief Manager                             

    Mothoot Precious Metals Corporation              

    Ground Floor, Chochin Dental Clinic Building,  

    Market Road North End, Cochin.  

2.  The Regional Manager

     Muthoot Precious Metals Corporation,       

     Pondicherry Branch                        

     No.98, 1^st Floor, Rangapillai Street,

    Pondicherry – 1.

                                       ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Tvl. R. Lakshmanan, H. Sathyaseelan and

                                                  P. Jayaraj, Advocates

FOR THE OPPOSITE PARTIES:  Thiru P. Karthigeyan, Advocate.       

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for directing the Opposite Parties to repay the amount of Rs.3,040/- to the complainant which was claimed as excessive from the complainant;  to pay the complainant a sum of Rs.1.00 lakh for the hardship , mental agony and for the monetary loss suffered by the complainant and for costs of the complaint. 

2.  The case of the complainant is as follows:

          The Complainant approached the second opposite party in order to join the gold coin scheme and entered into an oral agreement in Muthoot Kanaka Vrishty Scheme; Insta Gold, No. 021/0487/6 coin booked ; 20 monthly premium amount of Rs.5,978/- and commenced on 21.09.2012 and maturity date 21.09.2013 and the amount of Rs.71,736/-.  After entering the oral agreement, the complainant requested for the coins and the second opposite party stated that the complainant's coins will be kept safety and the complainant may get after paying all premium dues i.e. on 21.09.2013.  The complainant paid all instalments.  While so, on 24.09.2013 the complainant received a letter from first opposite party stating that recently the Government has changed customs duty of gold from 8% to 10%.  At the time of booking gold, the total price was inclusive of 4% customs duty and the difference due to the increase in customs duty to 10% will have to be paid by the complainant in the next advance / final settlement.  The complainant further stated that he got shock and surprise of the Opposite Partys' letter, as 1^st opposite party in the letter dated 08.09.2013 stated that there was neither an agreement nor a deed was signed by the complainant about customs duty or future duties.  The complainant also stated that the complainant had bought the coins on 21.09.2013 and which was kept in OP's custody and the complainant was paying for the same without any fail, that means the complainant's hard earning money was in OP's locker and aftr all this 1^st Opposite party had sent a vexatious letter which causes mental agony to the complainant and further which creates problems in his family which cannot be compensated in any manner and terms.  The complainant approached the second opposite party and asked for clarifications for which the second opposite party stated the same story and again asked for further payment of Rs.3,040/- towards custom duty and refused to give the gold coins in the complainant which caused more pain and mental agony to the complainant.  On 19.10.2013 the complainant issued a legal notice to the opposite parties which was duly acknowledged by them and gave a reply on 13.11.2013.  In the above circumstances, the complainant had left with no other options except to pay the additional amount of Rs.3,040/- to the second opposite party and obtained the coins only on 31.10.2013 which is the conclusive proof of unfair trade practice and deficiency in service. Hence, this complaint. 

          3. The reply version filed by the opposite parties briefly discloses the following:

          The complaint is neither maintainable in law nor on facts.  Apart from denying all the allegations, the opposite parties admitted that the complainant had entered into an agreement with the opposite parties under the Kanaka Vrishty Scheme: Insta Gold coin on 21.09.2012 for a period of 12 months on premium of Rs.5,978/- per month to be matured on 21.09.2013.  The complainant had been briefed with all the terms and conditions under the scheme and inclusive of liabilities towards the tax and the customs duty and only on acceptance of all the details, terms and conditions of the said scheme the complainant had joined the scheme.  Further, the complainant was explained at the inception itself about the details of booking for gold coin and the condition that the delivery will be taken after one year by paying the tax and the duty prevailing at the time of delivery and that the tax will be levied at the time of invoicing and will be collected from the coin buyers and remitted to the customs duty.  The same was explained vide reply letter dated 02.11.2013 also.  The opposite parties further stated that the customs duty have been repeatedly increased from 2% to 4% from 17.03.2012, then increased from 4% to 6% from 21.01.2013 and 6% to 8% from 7.6.2013 and from 8% to 10% from 14.08.2013 in addition to 1% of VAT.  There is no necessity for entering of a separate agreement nor a deed for meeting the increased customs duty by the customers as the terms and of the said scheme are superfluous and explained prior to the entering the said gold scheme by the complainant.  Further stated that since the liability to pay the increased customs duty is a stipulation of the Government of India to be followed by all the citizens of the country who purchase gold, there is no choice in this matter for the complainant and further the opposite parties cannot be made responsible for the said hike of customs duty.  The opposite parties further submit that immediately on entering the scheme, the opposite parties would purchase the gold coins and keep them in their custody.   The opposite parties further stated that there is no dispute regarding payment of instalments and the only dispute raised by the complainant is the payment of customs duty in which neither the complainant nor the opposite parties have any choince and is bound to comply with this as it is the stipulation and the policy decision of the Government of India which has to be followed by all the citizens of India and is not an exception to the complainant.  Further, the complainant having paid the entire amount inclusive of increased customs duty on 30.01.2013 itself which confirms his true intention of complying with the Government's requirement and completion of purchase of his gold coins thereby evidencing the concluding of the contract between the complainant and the opposite parties whereby the complainant has no prima facie case and cause of action to initiate and maintain this complaint.  There is no unfair trade practice and deficiency in service on the part of the opposite parties.  Hence, prayed for dismissal of the complaint. 

4.       On the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C5 were marked.  On the side of opposite parties, one Rajendiran, Regional Manager of OP No.2 was examined as RW1 and Exs.R1 to R10 were marked. 

5.       Points for determination are :

1. Whether the Complainant is the Consumer?
2. Whether the opposite parties attributed any unfair trade practice and deficiency in service?
3. To what relief the complainant is entitled for?

6.  Point No.1:

The complainant has joined in the Gold Coin Scheme with the Opposite Parties under the name and style of Muthoot Kanaka Vrishty Scheme on 21.09.2012 for a period of 12 months on monthly premium of Rs.5,978/- and matured on 21.09.2013 vide Ex.R1 application form.    Hence the Complainant is the Consumer for the opposite parties as per the Consumer Protection Act.

7. Point No.2:

          It is the allegation of the complainant that he had joined in the Gold Coin Scheme on oral agreement under the name and style of Muthoot Kanaka Vrishty Scheme : Insta Gold coin, No. 021/0487/6 on 21.09.2012 for 12 months on monthly instalment of Rs.5,978/- and the scheme matured on 21.09.2013.  After agreement, the complainant asked for the coins for which the second opposite party stated that the same will be kept safely and the complainant may get the same after paying all premium dues.  The complainant paid all the dues.  While so, on 24.09.2013 the complainant received a letter Ex.C2 dated 08.09.2013 stating that the government has changed customs duty of gold from 8% to 10% and at the time of booking, the total price was inclusive of 4% customs duty and demanded the difference amount of customs duty to a tune of Rs.3,040/-.  The complainant further alleged that there was neither an agreement nor a deed was signed by the complainant about customs duty or future duties.  Since the opposite parties did not give the gold coins to the complainant without paying the customs duty of Rs.3,040/- he had suffered pain and mental agony.  Hence, the complainant issued a legal notice Ex.C3 dated 19.10.2013 to the opposite parties who also received the same and sent reply notice Ex.C4 dated 02.11.2013 stating that the price of gold in Indian Market is determined by three major factors: (1) The fluctuation in the International price of gold, (2) The fluctuation in India rupee, (3) The Tax / Customs duty levied by the Government.  In the said reply notice it is further stated that the tax and duty are to be paid at the time of invoicing which has to be paid by the customer.  The complainant paid the said sum of Rs.3,040/- vide sale invoice Ex.C5 and obtained the coins.  The said act of collecting customs duty by the opposite parties is unfair trade practice and deficiency in service. 

              8. The opposite parties alleged that at the time of entering into an agreement, they have briefed with all the terms and conditions of the scheme inclusive of liabilities towards tax and the customs and only on acceptance of all the details and terms and conditions the complainant joined the scheme.  Further, the opposite parties explained the complainant about the details of booking of gold coin under the Scheme that the gold is booked with the Banks with the condition that delivery will be taken after one year by paying the tax  and the duty prevailing at the time of delivery and that the tax will be levied at the time of invoicing and will be collected from the coin buyers and remitted to the customs duty.  The opposite parties further alleged that since the customs duty have increased from time to time and now it is 10%, they have official informed the complainant through letter dated 18.09.2013 and there is no necessity for entering of a separate agreement nor a deed for meeting the increased customs duty by the customers since the same was explained earlier prior to entered the scheme by the complainant and therefore, the opposite parties cannot be made responsible for the said hike of customs duty.  The opposite parties further alleged that payment of customs duty is the stipulation and the policy decision of the Government of India which has to be followed by all the citizens of India and is not an exception to the complainant.  The opposite parties further submitted that there is no unfair trade practice and deficiency in service on their side. 

          9.  We have perused the complaint, reply version, evidence of CW1 and Exs. C1 to C5 and RW1 and Exs.R1 to R10 and the written arguments filed by the opposite parties.    The complainant entered into a Muthoot Kanaka Vrishty Scheme with the opposite parties on   21.09.2012 on payment of monthly instalments of Rs. 5,978/- for 12 months.  The scheme ended on 21.08.2013.  While raising Sales Invoice, the Opposite Parites collected Rs.3040/-  from the complainant as Customs Duty.  The complainant made an allegation that there was neither an agreement nor a deed was signed by the complainant about the customs duty, however, the opposite parties have collected the excess amount of Rs.3040/- as Customs Duty which caused him loss and mental agony.  Now the question arising for determination in this complaint is whether the complainant is entitled to get back the customs duty collected by the Opposite Parties. 

          10. Admittedly, there is no dispute relating to payment of instalments.  The only dispute is the payment of customs duty.    The opposite parties have stated that it is a mandatory one to collect the customs duty from the customers since it is levied by the Government of India.  The same fact was informed to the complainant at the time of joining  in the scheme.  Hence, there is no question that they have collected excess amount of customs duty from the complainant.  On perusal of evidence of CW1, the complainant has stated in his cross examination that "It is true to say that I have joined the scheme only after being explained and detailed about the scheme in entirety by the Opposite Parties orally".  From the above evidence, this Forum found that the terms and conditions was clearly explained to the complainant by the opposite parties while joining in the above Muthoot Kanaka Vrishty Scheme.  This Forum also perused the Ex.R1 Application Form given by the complainant.  In the said Ex.R1, page 2 in clause 11 and 12 of the terms and conditions, it is clearly stated as

          Clause 11. Any increase / additions in taxes / duties and making charges after joining the scheme, such amount will have tobe born by the customer.

          Clause 12. Booking price of gold is inclusive of 8% customs duty and 1% VAT which may vary according to the fluctuations in gold price / customs duty or change / addition of any other tax.  Subsequent changes in the taxes / duties after booking will be added in the remaining advance payment of the customer / at the time of maturity and the amount has to be remitted by the client."

Further, the CW1 in his cross-examination has stated that "I agreed that the customs duty stipulation is under the control of Central Government of India and not under the OPs".  Further, the CW1 admitted in this cross examination that "It is true that the OPs have explained me about all the terms and conditions in oral, only thereafter, I have signed the agreement by entering the scheme". 

          11. Hence, from the above, it is clear that the complainant has joined the above scheme only after having understood the terms and conditions of the scheme.  The defence taken by the opposite parties is that they are collecting the customs duty as mandatory, as per the Regulation prevailing in Government of India and it is not in their hand and the said amount will be remitted to the government.  The same was also admitted by the complainant in his cross examination.    But, in this case, the Central Government only determined the customs duty from time to time and hence, at the time of raising invoice, the opposite parties have collected 10% of customs duty at the prevailing rate.  In order to establish the contentions of the opposite parties, they have relied upon a Judgment reported in 1991  2  CPJ 221 : 1991  2  CPR 592 [K.L. JAIN vs M/S ALFA AUTOMOBILES – Appeal No. 108/90]  wherein, the Hon'ble Rajasthan State Consumer Disputes Redressal Commission, Jaipur held that

          "Where the complainant had to pay some extra amount while taking delivery of car on account of increase in excise duty, he cannot claim its refund."

          12. The opposite parties further relied upon a Customs Notifications No.41/2013 issued by the Ministry of Finance, Department of Revenue, Government of India wherein it has increased the customs duty as 10%.

13. In the instant case, the complainant has sought for the relief of returning the amount of Rs.3,040/- claimed in excess by the opposite party as customs duty.  This Forum has perused Ex.C2 dated 08.09.2013 wherein, the opposite parties have informed to the complainant that "the Government has changed customs duty of gold from 8% to 10%".  Also informed that "at the time of booking your gold, the total price was inclusive of 4% customs duty and the difference due to the increase in customs duty to 10% will have to be paid by you in the next advance / final settlement". 

14. Moreover, in the reply notice Ex.C4 dated 02.11.2013 the opposite parties have stated that "The tax and duty are to be paid at the time of invoicing which has to be paid by the customer".  Further in the said reply notice, the opposite parties have stated that "we are only booking the gold with some other bank with the condition that delivery will be taken after one year by paying the tax and duty prevailing at the time of delivery". 

          15. Further in Ex.R5 the inter official correspondence, the opposite parties company issued a circular stating that "The Customs Duty on gold has been increased to 4% with effect from 17^th March 2012.  There is an increase in the present customs duty on gold when compared with the customs duty charged at the time of booking of coins under MKV scheme.  Any subsequent change in the Duty/VAT is to be borne by the customer at the time of final invoicing.  On perusal of Ex.R6, the Government of India has increased the customs duty from 4% to 6% as per Notification  No. 1/2013 dated 21.01.2013.  Ex.R8 which is also a letter stating hike in the customs duty from 8% to 10% as on 14.08.2013.  From the above documents, the customs duty has been imposed inpursuance of an order issued by the Government of India but not by the opposite parties.    

16. From the above facts and evidences, this Forum finds no deficiency in service and Unfair Trade Practice attributed by the Opposite Parties.  The complainant failed to establish their case.  Hence, we are unable to grant any relief to the complainant.    This point is answered accordingly.

          17. Point No.3:

In view of the discussion and decision held in Point No.2, this complaint is liable to be dismissed. 

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

Dated this the 27^th  day of March 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           18.08.2014           Shankar             

OPPOSITE PARTY'S WITNESS:   

RW1           07.12.2015           M. Rajendiran

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTYS' EXHIBITS:   

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER