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Uttarakhand High Court · body

2010 DIGILAW 792 (UTT)

BAJRANG MOTORS v. PAN SINGH

2010-11-06

IRSHAD HUSSAIN, LAXMI SINGH

body2010
ORDER (Per : Justice Irshad Hussain, President) This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 03.06.2005 passed by the District Forum, Bageshwar, allowing the consumer complaint No. 29 of 2004, Sh. Pan Singh Vs. M/s Mahindra & Mahindra Co. Ltd. and another and directing the O.P. No. 2 – appellant to pay sum of Rs. 40,000/- within a period of three months from the date of the order, failing which the amount to carry interest @ 8% p.a. from the date of the complaint till the date of payment. 2. The appellant is a dealer of light motor vehicles manufactured by O.P. No. 1 – respondent No. 2, M/s. Mahindra and Mahindra Co. Ltd., 5th Floor, San Chamber, 5 Park Road, Hajratganj, Lucknow. Complainant-respondent No. 1 (hereinafter to be referred as “complainant”) purchased a light motor vehicle from the appellant on 30.11.2002. The same was allotted registration No. UA02-504 as a taxi and the permit to ply it as such was granted by Transport Authority concerned on 09.09.2003. By virtue of a relevant notification, General Exemption No. 66, which was issued under Section 1-B of Central Excise Act, 1944, exemption from payment or excise duty was permitted in case the vehicle had been registered for use solely as taxi and the excise duty paid was liable to be refunded to the owner according to the procedure prescribed and subject to claim for refund being made within the time also prescribed by the relevant notification. 3. Complainant claimed to have sent a letter to the appellant-dealer on 10.09.2003 seeking refund of the excise duty. The dealer in turn referred the matter to the manufacturer-respondent No. 2, who vide letter dated 16.09.2003 (Paper No. 16) informed the dealer that since the stipulated time for the submission of the claim for refund of excise duty is over, the claim is finally rejected and the customer was requested to be informed accordingly. The complainant felt aggrieved and alleging deficiency in service, filed consumer complaint against the dealer and the manufacturer for the refund of Rs. 37,000/-, the amount of the excise duty paid together with Rs. 3,000/- as damages and Rs. 2,000/- as expenses of the litigation. 4. The complainant felt aggrieved and alleging deficiency in service, filed consumer complaint against the dealer and the manufacturer for the refund of Rs. 37,000/-, the amount of the excise duty paid together with Rs. 3,000/- as damages and Rs. 2,000/- as expenses of the litigation. 4. The complaint was contested by the appellant and respondent No. 2 mainly on the ground that since the excise duty refund claim application form and concerned papers of the vehicle were not sent within the stipulated period of 180 days by the complainant, the claim became barred by time and as such there was no deficiency in service on their part. They also raised a plea that the complainant was not a consumer as contemplated under the Consumer Protection Act, 1986 as the vehicle was purchased for commercial purpose. It appear that this plea, however, was not pressed before the District Forum, which on an appreciation of the material on record held dealer – appellant responsible for making deficiency in service in not having the excise duty refunded by taking necessary steps and allowed the consumer complaint with a direction as stated above. Aggrieved, the appeal has been preferred by the dealer. 5. We have heard the Learned Counsel for the parties and have carefully considered their submission in the light of the facts and legal aspects of the case. It need to be stated that in order to avail the benefit of relevant notification, under which the exemption of excise duty was granted, laid down a procedure under Clause 45 which read as under : “(a) ...................... (b) ....................... It need to be stated that in order to avail the benefit of relevant notification, under which the exemption of excise duty was granted, laid down a procedure under Clause 45 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) ....................... 6. In view of above procedure, Learned Counsel for the appellant submitted that the complainant ought to have submitted the letter on 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, 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, Excise and since the letter or application was sent by the complainant admittedly on 10.09.2003 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 manufacturer in the matter of non-refund of the excise duty to the complainant. The legal preposition that the above provision prescribe period of limitation for making claim for refund of excise duty based under Section 11-B of the Central Excise Act 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 decision of the Hon’ble National Commission in the matter of Mahindra & Mahindra Ltd. Vs. Lions Club, Klions Eye Hospital and Another, 2002 (2) CPR 41 (NC) is also an authority on this point. 7. On the other hand, Learned Counsel for the complainant persuasively argued that under the procedure prescribed as reproduced above, the manufacturer was obliged to obtain a certificate from authorised officer of the concerned State Transport Authority to the effect that the motor vehicle had been registered as a taxi and to furnish the information accordingly within three months to the Assistant Commissioner, Excise to seek refund of the excise duty and the purchaser of the vehicle/taxi not being in the picture at all, the appellant or at any rate the manufacturer cannot be legally exonerated from the liability for not doing the needful and thereby making deficiency in service. We see no merit in the submission for the reason that the manufacturer would be obliged to obtain a certificate from an officer authorised by the concerned State Transport Authority only if it is brought to the notice of the manufacturer by the buyer of the vehicle that the vehicle purchased had been registered as a taxi as it was intended to be plied as such by him in pursuit of his vocation. In the reported case of Mahindra & Mahindra Ltd. (supra), buyer – complainant had immediately sent a letter to the dealer from when the vehicle was purchased intimating that the van purchased had been registered as ambulance entitling him to seek refund of the excise duty under the relevant notification. The papers were in turn sent by the dealer to the manufacturer who, however, failed to pursue the matter within the time prescribed under the relevant provision of the exemption notification and the claim for refund of excise duty was rejected as being barred by time. The papers were in turn sent by the dealer to the manufacturer who, however, failed to pursue the matter within the time prescribed under the relevant provision of the exemption notification and the claim for refund of excise duty was rejected as being barred by time. In such a situation, the manufacturer was held responsible for causing delay in seeking refund of excise duty and was, thus, saddled with the liability to pay the amount of the excise duty on account of deficiency in service made in that regard by the manufacturer. This decision is, thus, also an authority on the point that as soon as the vehicle was got registered as a taxi by the complainant, he was required to immediately send a letter to the dealer/manufacturer for refund of the excise duty and since it was not done by the complainant within the stipulated period of three months or at any rate within the extended period of further three months, it cannot be held that the dealer or the manufacturer made deficiency in service in that regard. 8. Learned Counsel for the complainant also drew attention to certificate dated 10.09.2003 of Regional Transport Officer, Haldwani (Paper No. 5/B of the original record) in which the date of registration of the vehicle as taxi is mentioned as 05.12.2002 i.e. within the stipulated period of 180 days from the date of the purchase of the vehicle. Referring to this date, Learned Counsel submitted that in case the manufacturer was to seek information and certificate from the concerned State Transport Authority within the stipulated period of 180 days, the manufacturer would have been able to receive a certificate that the vehicle purchased bys the complainant was registered as taxi and then the Assistant Commissioner, Excise could have been moved within time for refund of the excise duty and since no action had been taken by the manufacturer, it was a clear case of deficiency on its part. The submission lack merit because the certificate was issued by the Regional Transport Officer, Haldwani on 10.09.2003 in view of the permit to ply the vehicle as a taxi having been granted admittedly on 09.09.2003. The submission lack merit because the certificate was issued by the Regional Transport Officer, Haldwani on 10.09.2003 in view of the permit to ply the vehicle as a taxi having been granted admittedly on 09.09.2003. This indicate that without a permit of taxi, the vehicle could not have been plied on road as a taxi and claim for refund of excise duty could not have been submitted prior to grant of the permit to that effect by the Regional Transport Authority authorised under the Motor Vehicle Act, 1988. Therefore, the date of registration of taxi is also not a material date in the matter in controversy and the complainant having failed to obtain the required permit for taxi within the stipulated period and to inform the dealer/manufacturer accordingly, the manufacturer could not have taken action for refund of the excise duty and, therefore, there was no deficiency in service at all on the part of the manufacturer of the vehicle or at any rate the dealer. The District Forum failed to consider these aspects of the matter in controversy and merely on the basis of the exemption of excise duty went on to allow the consumer complaint against the dealer by the impugned order. The impugned order, therefore, is erroneous and cannot be legally maintained. As such, the appeal is fit to be allowed. 9. Appeal is allowed. Order dated 03.06.2005 of the District Forum is set aside and the complaint is dismissed. No order as to costs.