BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 22/06/2011

Date of Order : 31/10/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 329/2011

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

On 17-09-2009, the complainant purchased a Tata Indigo car from the 1^st opposite party, which was manufactured by the 2^nd opposite party at a price of Rs. 4,56,997/-. The 2^nd opposite party offered refund of Rs. 30,000/- by way of differential excise duty, since the vehicle was registered as a taxi. The complainant received the taxi registration on 04-02-2010 from the Registering Authority. Thereafter, the complainant approached the 1^st opposite party with necessary documents to claim refund of the excise duty. The 1^st opposite party forwarded the documents to the 2^nd opposite party only on 13-02-2010. The 2^nd opposite party informed the complainant that the claim of the complainant is time barred, since the 1^st opposite party failed to despatch the documents in time. Thus, the complainant is seeking direction against the opposite parties to pay the differential excise duty together with compensation of Rs. 20,000/- and Rs. 1,500/- towards costs of the proceedings. This complaint hence.

2. The version of the 1^st opposite party is as follows :-

The complainant is not a consumer within the ambit of the Consumer Protection Act. The 1^st opposite party had informed the complainant that as per the provisions of the Central Excise Act, the claim for refund of excise duty has to be made by the 2^nd opposite party within 6 months from the date when the vehicle was cleared from the plant of the 2^nd opposite party. The registration papers pertaining to the registration should reach the 2^nd opposite party within 90 days from the date of clearance from the plant so as to enable them to process the application effect refund of the amount and in turn submit the necessary application to the Central Excise Authorities for claiming the refund. The vehicle had been cleared from the plant of the 2^nd opposite party on 27-07-2009. Since, the claim of the complainant dated 13-02-2010 was time barred. The 2^nd opposite party forwarded the application together with the delay condonation petition to the Assistant Commissioner of Central Excise. There is no deficiency in service on the part of the 1^st opposite party in forwarding the application of the complainant.

3. The 2^nd opposite party as well filed a separate version raising similar contentions that of the 1^st opposite party.

4. The complainant was examined as PW1 and Exts. A1 to A4 were marked. The witness for the opposite parties was examined as DW1 and Exts. B1 to B5 were marked. Heard the learned counsel for the parties.

5. The points that came up for consideration are as follows :-

1. Whether the complainant is a consumer and the complaint is maintainable in this Forum?

2. Whether the complainant is entitled to get refund of the differential excise duty?

3. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

6. Point No. i. :- At the threshold, the opposite parties contended that the complainant is not a consumer within the purview of the Consumer Protection Act. Apart from the averments in the version, nothing is on record to substantiate the same. Moreover, the Hon'ble National Consumer Disputes Redressal Commission in Assistant Commissioner, Central Excise, Gurgaon Vs. Rajesh Bhatti and Others RP No. 1/2000 decided on 20-03-2002 has considered similar set of facts and ventilated the grievances of the complainant in that case. In view of the above authority, we are only to hold that the complainant is a consumer and the complaint is maintainable in this Forum.

7. Point No. ii. :- Admittedly on 17-09-12009, the complainant purchased a vehicle from the 1^st opposite party which was manufactured by the 2^nd opposite party. The opposite parties contended that as per the Central Excise Act, the complainant ought to have submitted his application for refund of excise duty within 180 days from the date of invoice of the vehicle ie. on 27-07-2009 and the complainant submitted the application only on 13-02-2010 which is barred by limitation. We are not to entertain the above contention of the opposite parties, especially when DW1 the witness from the 1^st opposite party deposed before the Forum that the complainant was called upon to submit the application for refund of the excise duty after the vehicle being registered as a taxi. Accordingly, the vehicle was registered as a taxi on 04-02-2010 and the complainant submitted the application before the 1^st opposite party on 13-02-2010. Later, the 2^nd opposite party sent Ext. A4 letter to the complainant on 28-02-2010 stating as follows :-

“Please refer to your document dated 13-02-2010 in respect of Tata Indigo registered as a Tourist Taxi purchased by Mr. Usaman C.B.

As you are aware and as indicated in the circular No. SK: 9220 dated 4^th August 2008, at para (3) C) issued by our sales office the registration certificate and other papers pertining to registration should reach within 90 days from the date of clearance from the plant and if the documents are in order, we refund the amount to the TMLD and TMLD refunds the same to dealer and the dealer in turn to the customer. Thereafter we have to file the refund claim with the receipts and set of documents to the Central Excise Authorities. This activity is to be completed within 6 months from the date of clearance of the car from TML car plant.

In this case the documents were not sent to us in the prescribed time limit stated above and as such the refund is time barred, the documents sent by you for the above claim are returned herewith.”

8. The 2^nd opposite party maintains that they have duly forwarded Ext. A3 circular to the 1^st opposite party detailing the procedure to be followed by the complainant to process the application and the time frame for the same. DW1 Deposed that the 1^st opposite party has not handed over Ext. B3 to the complainant and claims that he has conveyed its contents to the complainant orally. The non-supply of Ext. B3 to the complainant itself is a deficiency in service on the part of the 1^st opposite party.

9. The opposite parties put forward a contention that at their instance the complainant submitted Ext. B1 request dated 13-02-2010 to the Assistant Commissioner of Central Excise to condone the delay in processing the appealable for refund of excise duty. We are at a loss to accept the contentions, because primarily the manufacturer failed to forward Ext. B1 to the Assistant Commissioner of Central Excise in spite of their direction. The Assistant Commissioner of Central Excise is empowered to consider such an application under Section 35 of the Central Excise Act. It is pertinent to note that the order under Section 35 of the said Act is appealable and the appeal has to be filed by the 2^nd opposite party who was the only person entitled to seek refund and then pay the same to the complainant wherein they failed. The 2^nd opposite party neither filed any application to condone the delay nor did file any appeal for the same reasons not stated or explained in which they are responsible and liable. The delay is submitting the application for refund of excise duty having been caused due to the laches on the part of the Registering Authority does not make the complainant responsible. The explanation for the same lies only on the opposite parties. We do not think that a request for the same can be held on deaf ears without reasonable cause. So, necessarily the option left open which cannot be closed in conclusively. We are only to hope that the Central Excise Authority may have to reconsider the matter in the interest of natural justice and rule of law. We have no fear that the opposite parties of such repute and reliably held for a just order in a case, herewith shall deviate therefrom.

10. Point No. iii. :- The directions above having sufficiently go to adequately and efficaciously remedy the grievances of the complainant need no further conference. No order as to compensation and costs of the proceedings.

11. The learned counsel for the opposite parties relied on the following decisions rendered by the higher judiciary :-

1. K. Varkey Varghese Vs. Oriental Insurance Co.Ltd. II (2001) CPJ 422.

2. Cheema Engineering Services Vs. Rajan Singh (1997) I Supreme Court Cases 131.

3. Laxmi Engineering Works Vs. P.S.G. Industrial Institute II (1995) CPJ 1 (SC).

4. Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd. (2011) 1 Supreme Court Cases 525.

5. Meera Industries Vs. Modern Constructions II (2009) CPJ 402 (NC).

6. Chandra Bhushan Prasad (Dr.) Vs. Life Insurance Corporation of India IV (2010) CPJ 187 (NC).

7. Economic Transport Organisation Vs. Charan Spinning Mills (P) Ltd. & Anr. I (2010) CPJ 4 (SC).

8. P.S. Kalantri (Dr.) Vs. Wipro GE Medical Systems Ltd. I (2010) CPJ 135 (NC).

9. R.D. Goel & Co. Pvt. Ltd. Vs. Nitco Roadways Pvt. Ltd. & Anr. II (2010) CPJ 106 (NC).

10. Popular Vehicles & Services Ltd. Vs. Maruti Udyog Ltd. Others. Appeal Nos. 891/93, 465/94, 466/94, 556/94, 557/94 1086/94, 289/94 and 293/94 of the Kerala State Consumer Disputes Redressal Commission.

11. Union Bank of India Vs. M/s. Seppo Rally OY & Ors. III (1999) CPJ 10 (SC).

12. Ravneeth Singh Bagga Vs. M/s. KLM Royal Dutch Airlines & Anr. III (1999) CPJ 28 (SC).

We are not to rely on the same, since the same do not conform with the case at hand.

12. In the result, we close the proceedings in this complaint with the following directions :-

The opposite parties shall take steps to process such application of the complainant to redress the genuine grievance of the complainant wherein they shall not fail. If at all, the directions are not complied with the complainant is at liberty to approach this Forum again for redressal of grievances.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 31^st day of October 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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