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2010 DIGILAW 583 (UTT)

MEGA MOTORS v. HARISH SINGH BISTH

2010-08-18

C.C.PANT, IRSHAD HUSSAIN, KUSUM LATA SHARMA

body2010
ORDER (Per : Justice Irshad Hussain, President) 1. Both these appeals arise out of one and the same order dated 14.05.2008 passed by the District Forum, Nainital, partly allowing consumer complaint No. 31 of 2007. By the order impugned, authorised dealer – M/s Mega Motors as well as the manufacturer of the vehicle – Tata Engineering & Locomotive Co. Ltd., opposite party Nos. 1 and 2 respectively, were jointly and severally held liable to refund excise duty of Rs. 68,941.21/- to the complainant together with interest @ 9% p.a. and also to pay litigation expenses of Rs. 2,000/-. Opposite party No. 3 – Deputy Commissioner, Central Excise was, however, not saddled with any liability in that regard. Aggrieved by the order impugned, both the authorised dealer and the manufacturer of the vehicle filed these appeals and assailed the propriety and legality of the order impugned. 2. The delay in filing the appeals is hereby condoned and the same are admitted for decision on merit. 3. None appeared on behalf of Deputy Commissioner, Central Excise. We have heard the learned counsel for the dealer, manufacturer and the complainant and considered their submissions in the light of the facts, circumstances and legal aspects of the case. The short question which arise for consideration in these appeals is whether or not the complainant had submitted the requisite papers for refund of excise duty within the time prescribed by the relevant Notification and the dealer and also the manufacturer of the vehicle, have not sent the papers for refund of the excise duty to the Excise Commissioner, as a result of which, the excise duty could not be refunded to the complainant by the department concerned and in that event, the dealer and the manufacturer were liable to pay the amount of the excise duty to the complainant. 4. At the outset, it need to be stated that by virtue of a relevant Notification under the provisions of the Central Excise Act, 1944, exemption from payment of excise duty was allowed in case the vehicle had been registered for use solely as a taxi or ambulance and the excise duty paid was liable to be refunded to the owner according to the procedure prescribed, subject to the claim for refund having been made within the time prescribed by the Notification. Complainant came up with the allegation that he had purchased a new Tata Indica car on 22.11.2002 for taxi purpose and submitted requisite papers with the dealer – appellant M/s Mega Motors on 09.01.2003, seeking refund of the excise duty. The claim was contested by the appellants and they claimed that the complainant’s papers for refund of excise duty were received on 22.08.2003 by the dealer, who in turn, sent the papers to the manufacturer and finally the papers were sent to the Excise Commissioner concerned by the manufacturer for doing the needful and since the requisite papers were not submitted within the prescribed period from the date of clearance of the subject motor vehicle from the factory of the manufacturer, the appellants have not made any deficiency in service to the complainant. According to them, the claim for refund of excise duty having not been accepted by the excise department, the appellants were not at all responsible or liable for the same to any extent. 5. The District Forum, placing reliance on the averment of the affidavit dated 24.08.2007 of the complainant and xerox copy of the so-called receipt of refund of excise duty, allegedly submitted to the dealer on 09.01.2003, accepted the complainant’s claim that the comliance of the relevant provision for refund of the excise duty by submission of the requisite papers within the prescribed period of 60 days had been made by the complainant and that the dealer had not forwarded the papers within time, resulting which, the Excise Commissioner did not refund the excise duty to the complainant. In accepting the complainant’s claim, the District Forum rejected the contention of both the appellants that the complainant submitted the requisite papers with the dealer on 22.08.2003 with belated delay and despite forwarding of the papers to the Excise Department, the excise duty could not be refunded for the complainant by the department concerned. Learned counsel for the appellants persuasively argued that the District Forum fell in error in placing reliance on the affidavit of the complainant and the so-called xerox copy of the requisite paper allegedly submitted with the dealer by the complainant on 09.01.2003, for the simple reason that the so-called receipt of refund can not at all be treated to be the requisite document for refund of the excise duty. The said paper does not contain any particulars of the vehicle, registration certificate, particulars of the permit to ply the vehicle as a taxi and also any endorsement of the receipt of the same by the dealer. 6. Further, as pointed out by the learned counsel, the vehicle purchased by the complainant was registered on 27.01.2003 and the permit to ply the same as a tourist taxi was granted by the transport authority on 08.08.2003. Even the fitness certificate of the vehicle was obtained on 27.01.2003 before getting the vehicle registered and that being the position, question of submission of any papers for refund of the excise duty prior to these dates on 09.01.2003 by the complainant, does not at all arise. We have no hesitation in accepting the contention of the learned counsel that the xerox copy of the so-called receipt of refund filed with the affidavit dated 24.08.2007 of the complainant is a got-up document and the District Forum made a factual and legal mistake in treating it as requisite document for refund of the excise duty. In the face of the facts of the case and the dates mentioned above and the averments of the affidavits of the persons concerned on behalf of the dealer and the manufacturer, there remain no manner of doubt that the requisite papers for refund of the excise duty could not have been submitted by the complainant before 08.08.2003 and considering this aspect of the matter, the evidence of the dealer and the manufacturer that the complainant submitted the papers as late as on 22.08.2003 for refund of excise duty and that too much after the expiry of prescribed period, warranted acceptance and in not believing the same, the District Forum made factual and legal error. 7. 7. Learned counsel for the complainant, with a view to controvert the contention made on behalf of the appellants, drew our attention to the provision of Section 11B of the Central Excise Act, 1944, to bring home the point of view that a claim for refund of excise duty can very well be made before the expiry of one year from the relevant date and, thus, urged that even if the relevant papers were to be taken to have been submitted by the complainant on 22.08.2003, the compliance of the relevant provision has been made within a period of one year from the date of purchase of the vehicle on 22.11.2002 and on this legal premise, the stand taken by the appellants being against the legal provision, would not be tenable. The submission made by the learned counsel for the complainant, however, would not find acceptance, in view of the fact that right to seek refund of the excise duty to the complainant accrued not merely on the basis of the bare provision of Section 11B of the Central Excise Act, 1944, but by virtue of the exemption from duty of excise granted by relevant Notification issued in exercise of the powers conferred by Sub-section (1) of Section 5A of the Central Excise Act, 1944 and under that Notification, the benefit of refund of excise duty could be availed if the relevant papers showing that the purchased vehicle has been registered for use solely as a taxi, have been submitted by the manufacturer to the Assistant Commissioner of the Central Excise within three months of the date of clearance of the said vehicle from the factory of the manufacturer or such extended period, as the said Assistant Commissioner may like. The relevant Notification No. 64/93-CE dated 28.02.1993 under heading No. 87.03 of the Central Excise Tariff Act, 1985 relating to Motor Cars, Station Wagons etc. issued by the Central Government came to be reproduced by the Hon’ble National Commission in the matter of Assistant Commissioner, Central Excise Vs. Rajesh Bhatti and others; III (2002) CPJ 30 (NC) and it reads as under : “64/93-CE, dated 28.2.1993: In exercise of the powers conferred by Sub-section (1) of Section 5A of the Central Excise and Salt Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do ... Rajesh Bhatti and others; III (2002) CPJ 30 (NC) and it reads as under : “64/93-CE, dated 28.2.1993: In exercise of the powers conferred by Sub-section (1) of Section 5A of the Central Excise and Salt Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do ... Exempts all goods falling under heading No. 87.03 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), from so much of the duty of excise levied thereon which is specified in the said Schedule as is in excess of the amount calculated at the rate of 40 per cent ad valorem. Provided that in a case where a saloon car after clearance has been registered for..... as taxi, the manufacturer of the said saloon car shall be entitled to a further exemption of duty of 7 percentage points subject to the following conditions: (a) the manufacturer at the time of clearance of such saloon car has paid excise duty calculated at the rate of 40 per cent ad valorem: (b) the manufacturer furnishes to the Assistant Commissioner of Central Excise a certificate from an officer authorised by the concerned State Transport Authority in this behalf to the effect that such saloon car has been registered for use solely as a taxi, within three months of the date of clearance of the said saloon car from the factory of manufacturer or such extended period as the said Assistant Commissioner may allow; (c) the manufacturer had not collected from the person in whose name such saloon car has been registered as a taxi, or in a case had collected and has refunded to such person, the amount equivalent of such further exemption of duty; and (d) the manufacturer files a claim for refund of duty in terms of Section 11B of Central Excise and Salt Act, 1944 (1 of 1944).” 8. In view of above, an application for refund of the excise duty has to be made within the prescribed period of three months, so that on receiving the application, the manufacturer can furnish required papers to the Assistant Commissioner, Central Excise for getting the refund of the excise duty. It need to be stated that in First Appeal No. 155 of 2005; Bajrang Motors Vs. Sh. It need to be stated that in First Appeal No. 155 of 2005; Bajrang Motors Vs. Sh. Pan Singh and another decided by this Commission on 06.11.2006, the procedure as provided under Clause 45 of the Notification to avail the benefit of the Notification has been reproduced and which read as under : “(a) ....................................... (b) ....................................... (c) the manufacturer furnishes to the said Assistant Commissioner, a certificate from an officer authorised by the concerned State Transport Authority, to the effect that the said motor vehicle has been registered for use solely as ambulance or taxi, as the case may be, within three months, or such extended period not exceeding a further period of three months as the said Assistant Commissioner may allow, from the date of clearance of the said motor vehicle from the factory of the manufacturer; (d) where the manufacturer has collected an amount, as representing the duties of excise, in excess of the duties payable under this exemption from the buyer, on receipt of a communication from the said Assistant Commissioner that the claim is otherwise eligible for sanction, the manufacturer shall return the excess amount so collected and submit evidence to the said Assistant Commissioner to the effect that the said amount has been duly returned to the buyer. (e) ...................................................” 9. In view of above procedure, learned counsel for the appellants submitted that the complainant ought to have submitted the letter or application together with relevant papers for refund of the excise duty within the stipulated period of three months, so that during this period, the manufacturer could have moved the Assistant Commissioner, Central Excise for refund of the excise duty or in an extreme case, within a further extended period of three months, which could have been extended on sufficient cause by the Assistant Commissioner, Central Excise and since the required papers for refund of excise duty were submitted by the complainant on 22.08.2003, i.e., after more than six months from the date of the purchase of the vehicle, his claim for refund of excise duty became barred by limitation and, as such, there was absolutely no deficiency in service on the part of the dealer and even the manufacture. The legal preposition that the above provision prescribe period of limitation for making claim for refund of excise duty based under Section 11B of the Central Excise Act, 1944 and we may refer to the decision of the Hon’ble Apex Court in the matter of M/s Sahakari Khand Udyog Mandal Ltd. Vs. Commissioner of Central Excise and Customs; 2005 AIR SCW 1518 as an authority on the limitation aspect of the matter. The decisions of the Hon’ble National Commission in the matter of Rajesh Bhatti and others (supra), Mahindra & Mahindra Ltd. Vs. Lions Club, Klions Eye Hospital and another; 2002 (2) CPR 41 (NC) and Wasan Automobiles Vs. Narayan R. Vaidya and others; II (2007) CPJ 87 (NC), also support the appellants’ case. A recent decision of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in the matter of Premier Ltd. (Formerly The Premier Automobiles Ltd.) Vs. Kapilnath D. Shukla and others; IV (2009) CPJ 480, is also a decision on the point that the time prescribed for submission of the relevant papers by the purchaser of the vehicle, registered as taxi, seeking refund of the excise duty according to the prescribed procedure, is 90 days. 10. In view of above, there was overwhelming evidence to indicate that the complainant had not submitted the requisite papers for refund of excise duty within the stipulated period of three months (which is mistakenly alleged to be two months by the parties) and went on to submit the same after belated delay of more than six months on 22.08.2003, when the claim for refund of excise duty had already become barred by time. In the face of the facts of the case, the decision in the matter of M/s Panchwati Motors and others Vs. Dr. (Major) S.K. Garg and another; 2003(1) CPR 113 (NC), pressed into service by the learned counsel for the complainant, would be of no help to the cause of the complainant, for the simple reason that the complainant failed to submit the requisite papers within the prescribed period and despite this, the papers for refund of the excise duty were sent by the dealer to the manufacturer, who in turn, forwarded the papers to the Excise Department for necessary action. In fact, the dealer and the manfacturer have not made any deficiency in service, so as to render themselves liable to pay the amount of excise duty to the complainant. The District Forum, by impugned order, wrongly held them liable to pay the amount to the complainant. 11. For the reasons aforesaid, both the appeals succeed and are fit to be allowed and the order impugned is liable to be set aside and the consumer complaint is liable to be dismissed. 12. In view of above, both the appeals are allowed. Order impugned dated 14.05.2008 of the District Forum is set aside and consumer complaint No. 31 of 2007 is dismissed with costs of Rs. 2,000/- each payable by the complainant to both the appellants. 13. Let the copy of the order be kept on the record of First Appeal No. 142 of 2008.