K.L. JAIN vs LFA AUTOMOBILES

AGAINST the order dated i6.3.1989 passed by the District Forum, Jaipur in Complaint Case No. 78/89, the complainant-appellant has filed this appeal under S. 15 of the Consumer Protection Act, ("the Act" hereinafter). The complaint was submitted before the District Forum on 11.4.1989. It was alleged by the complainant that he had placed order with the opposite party for supply of a Maruti 800 Deluxe car on February 6,1989. The full amount of the price of the car Rs. 1,24,930/- was paid vide D.D. No. 646184 dated Fabruary 6,1989 drawn on UCO Bank, Bani Park, Jaipur. Receipt No. 1008 dated 6.2.1989 for the aforesaid amount was issued to the complainant. The complainant is said to have approached the opposite parties several times. Vide delivery note No. 89/34 dated March 17, 1989 the car was delivered to the complainant by the opposite party. It is stated, by the complainant that an additional sum of Rs. 10,116/- on the pretext of the increase in excise duty on the car as announced by the Finance Minister while presenting the Budget to the Parliament on February 28,1989 was realised. The grievance of the complainant is that the opposite party might have indulged in profiteering by pocketing extra money by reason of additional exise duty even on cars available in the stock either at the godown or elsewhere held by their principles. As averment was made that according to law additional excise duty or higher excise duty is chargeable only on goods cleared by the manufacturer after declaration of excise proposals and, therefore, the opposite party should have provided the car at the price of Rs. 1,24,930/- which he had already paid. It was prayed by the complainant that a direction for the refund of Rs. 10,116/- to the complainant by the opposite party together with one month and 11 days interest @ 12% p.a. on Rs. 1,24,930/- may be issued. A prayer for penal action pgainst the opposite party for wilfully defrauding the public by making false promises, taking full amount of car value under pretext of ready availability even when cars were not physically available with them was made. The complainant submitted with the complaint photostat copies of receipts, delivery note and invoice.

AN application was filed on behalf of the opposite party on 12.6.1989 challenging the jurisdiction of District Forum, Jaipur to entertain the complaint praying that the complaint should be dismissed with costs. The District Forum by order dated 1.7.1989 repelled the objection regarding the jurisdiction. Thereafter, the opposite party submitted its version of the ease dated 10.7.1989 contesting the complaint on various grounds. It was submitted that the car was delivered to the complainant as soon as the opposite party got it from the Company. The opposite party was not having ready car at the time when the amount was paid by the complainant. The complainant agreed that the payment made by him may be accepted according to the current price and it was subject to change without notice, difference due tax, duty and other levies whatsoever shall be paid by the complainant before taking delivery of the vehicle. After depositing Rs. 1,24,930/- on 26.2.1989 the Union Govt. had prepared the Central Budget which was presented in the Parliament on 28.2.1989. The Union Govt. had increased the excise duty on the vehicles manufactured by the Maruti Udyog. As the car was delivered to the opposite party on 17.3.1989 when the excise duty has already been increased, additional amount of Rs. 10,116/- and other taxes were recovered from the complainant. The opposite party with the version of the case submitted photostat copies of the forwarding letter 174-3029, invoice, gate pass for removal of excisable goods from a factory or warehouse on payment of duly. The complainant submitted affidavit dated 6.11.1989 in support of the complaint. On behalf of the opposite parly, affidavit of Sales Manager dated 23.1.1990 was submitted. A list of Deluxe car-bayer''s blue was also submitted by the opposite party. The District Forum fixed 14.3.1990 for arguments and for production of record. The complaint was decided by the District Forum by its order dated 16.3.1990. The complaint was dismissed. The complainant has filed the appeal. The appeal was presented one day after the expiry of period of limitation. On behalf of the appellant, an application for condonation of delay was filed supported by the affidavit of complainant appellant. The appeal was registered subject to all just exceptions. After notice on behalf of the opposite party-respondents reply to the appeal as well as reply to the application for condonation of delay were submitted. On behalf of the appellant written arguments were submitted on 9.11.1990. On behalf of the respondent no written arguments were submitted. We heard Mr. Sandeep Arora, learned Counsel for the respondent. Learned Counsel for the appellant stated that he does not want to add anything, for, he had already submitted the written arguments on 9.11.1990.

On behalf of the respondent it was submitted that the appeal should be rejected as barred by time for it was presented after the expiry of period of limitation. Learned Counsel invited our attention to the reply to the application supported by affidavit. There is delay of one day in presenting the appeal. We have carefully considered the application under S. 5 of the Limitation Act supported by affidavit and the reply thereto supported by affidavit. There is delay of one day. The facts stated in para 2 of the application, in our opinion, constitute sufficient cause which prevented the appellant from filing the appeal in time. The delay of one day was condoned and is condoned.

IN regard to the merits of the case it was submitted in the written arguments that the opposite-respondent took the full amount of the price of the car on 6.2.1989 as this type of car was advised readily available for delivery and on the express understanding that no booking of this type of car was being done. IN support of this, as was contended before the District Forum that on 6.2.1989 the priority of the complainant was at No. 79. On behalf of the opposite party it is submitted that the name of the complainant is entered at S. No. 12. On 6.2.1989 the purchaser whose name appears at S. Nos. 1 to 5 bad already been supplied the vehicle. On 6.2.1989 the purchaser standing at the top was Shri V.K. Jain whose name appears at No. 6. Thus the priority when calculated from S. No. 6 is 7th at S. No. 12 where the complainant stood. We have carefully considered the chart and the facts stated by the District Forum in this regard are correct. No consumer was supplied the vehicle on that day on which the deposit was made. The vehicle that was supplied to the complainant bears chassis No. 277696 Engine No. 383430 and colour OST. INvoice shows that this vehicle was despatched on 11.3.1989 i.e. after the increase of the excise duty. Gate pass has been produced which shows that the above vehicle was removed from the factory on 11.3.1989. There is no room for doubt that the vehicle was taken out from the factory premises after the excise duty had increased on 11.3.1989. The vehicle was supplied by the opposite party to the complainant on 17.3.1989. A perusal of the receipt dated 6.2.1989 when the complainant had paid Rs. 1,24,930/- by D.D. to the opposite party contains Condition No. 1 which is as follows : "The payment is accepted as per the current prices, and is subject to change without Notice Difference due any change in prices, taxes, duties and other levies, whatsoever, shall have to be paid by the customer before taking delivery of his vehicle."

The forwarding letter sent by the complainant shows that the complainant was well aware of the following written under the head "I fully understaind that : "3. The prices quoted are subject to change without notice and the prices, taxes, duties and other levies ruling at the time of Billing shall be applicable."

Reading Condition No. 1 and Clause 3 quoted above from the forwarding letter leave no room for doubt that the amount of Rs. 1,24,930/- which was deposited by the complainant with the opposite party was with respect to the current price that prevailed and that if there is any change in the prices on account of change in price, excise duties and other levies ruling at the time of billing shall be applicable. S. 64 A of the Sale of Goods Act, 1930 is as follows : "S. 64 A IN the event of any duty of customs or excise on any goods being imposed, increased, decreased or remitted after the making of any contract for the sale of such goods without stipulation as to the payment of duty where duty was not chargeable at the time of the making of the contract, or for the sale of such goods duty paid where duty was chargeable at that time : (a) if such imposition or increase so takes effect that the duty or increased duty, as the case may be or any part thereof, is paid, the seller may add so much to the contract price as will be equivalent to the amount paid in respect of such duty or increase of duty, and he shall be entitled to be paid and to sue for and recover such addition, and

(b) if such decrease or remission so takes effect that the decreased duty only or on duty, as the case may be, is paid, the buyer may deduct so much from the contract price as will be equivalent to the increase of duty or remitted duty and he shall not be able to pay, or be sued for or in respect of, such deduction."

Mr. Sandeep Arora learned Counsel for the opposite party invited our attention to AIR 1950 Bom. 222, AIR 1962 S.C. 1006 and AIR 1982 Delhi 76 to show that the opposite party could recover the increased price on account of increase in the excise duty at the time of delivery. We may usefully except paras 25 and 28 from the report which are as under : "(25) In our view, a duty of excise is a tax-levy on home-produced goods of a specified class or description, the duty being calculated according to the quantity or value of the goods and which is levied because of the mere fact of the goods having been produced or manufactured and unrelated to and not dependent on any commercial transaction in them. The duty in the present case satisfies this test and therefore it is unnecessary to seek other grounds for sustaining the validity of the tax.

(28) In dealing with the arguments of learned Counsel on the scope and content of Entry 84 of the Constitution and of the meaning of the expression "duty of excise" in that entry we have also covered the special argument questioning the right of Parliament to impose retrospectively a duty of excise. It was conceded that Parliament has power to enact laws with retrospective effect and as it was not suggested that laws dealing with taxation are any exception to that rule, the only ground upon which the learned Counsel could rest this submission was that being an indirect tax, capability of being passed on was an essential characteristic or requirement of a duty of excise, and so its imposition with retrospective effect deprived it of that essential character and therefore rendered it a duty of a different nature and for that reason a retrospective imposition of an excise duty was not permissible. It would be seen that this is really the same argument which we have dealt with earlier presented in another form. For the reasons already stated, we find no substance in this form of argument either and we have no hesitation in rejecting it. It need only be mentioned that the passage in the judgment of Lord Davey in 1906 AC 360 already extracted, is sufficient precedent, if authority were needed to reject this argument."

IT was held in AIR 1982 Delhi 76 as under : "In any case, the purpose for which S. 64-A was enacted has to be kept in view. The purpose obviously was that increase or decrease in duty should be taken note of in the case of contracts concluded prior to the increase or decrease. No party should be made to unnecessarily gain or suffer on account of State action in increasing or decreasing duty. I, therefore, agree with the view expressed by my learned brother Kumar, J. and will, therefore, accept the appeals. The result would be that the award will be set aside and the objections filed by the appellant would be accepted."

A photo stat copy of the order of the Delhi High Court passed in Shri O.P. Chopra v. M/s Maruti Udyod Ltd. (Civil Writ Petition No. 1210 of 1985 decided on 16.1.1986) has been submitted on behalf of the opposite party. In that, the respondent company had intimated by a letter dated 9.3.1985 that the vehicle was ready for delivery and the petitioner in the writ petition was asked to deposit the amount. The petitioner deposited the amount on or around March 19,1985. However, at the time of delivery he was asked to pay an additional amount of Rs. 8,000/- and odd which according to the petitioner was not justified. It was submitted before the High Court that there was no justification to realise the amount of Rs. 8,000/-. While repelling this contention the learned Judges who decided the writ petition noticed that the letter dated 9.9.1985 specifically stated that the vehicle will be ready for delivery during April 85 and the actual price prevalent at the time of sale will be charged. The vehicle in that case was admittedly delivered on or around April 8, 1985 while the actual price on that date was Rs. 8,000/- or so more than what the petitioner had deposited. The Delhi High Court repelled the arguments. The facts of this case are more or less identical with the facts of the case in hand. Here, the complainant had agreed to the condition that the price prevalent at the time of delivery of the vehicle will have to be paid by the customer. On March 17,1989 there was increase in the price on account of increase in the excise duty. The amount of Rs. 10,116/- realised from the complainant at the time of affecting the delivery of the car on March 16,1989 was due to the increase in excise duly and it would be recovered. The District Forum has stated in the impugned order that this amount of Rs. 10,116/- had gone to the coffers of the government. The complainant appellant in accordance with the conditions set out hereinabove was bound to pay the price of the vehicle on the date of the billing which was admittedly after the budget proposal have come into force. The complainant was not entitled to any relief under the Act. The complaint was rightly dismissed by the district Forum and no valid exception can be taken to it. There is no merit in this appeal and it is accordingly dismissed. Parties are however left to bear their own costs of this appeal. Complaint dismissed.