Life Insurance Corporation of India vs Jai Parkash

-THIS revision petition is directed against an order passed by the Maharashtra State Commission holding M/s. Premier Automobiles and Wasan Automobiles jointly and severally liable to pay Rs. 28,000 with interest @ 15% from the date of complaint till payment plus cost of Rs. 3,000 to the complainant.

IN this matter a short question relating to refund of excise duty is involved. The complainant/respondent had purchased the Premier Padmini 137-D Diesel Car on 11. 10. 1994 from Wasan Automobiles for a sum of Rs. 2,43,512. The vehicle was registered as a contract carriage and the permit was signed by the RTO on 23. 1. 1994. The complainant forwarded a copy of that permit to Wasan Automobiles for refund of excise of Rs. 28,000. The petitioner-appellant forwarded those papers to the manufacturer but it was found that the refund could not be granted because the papers were not sent in 60 days time and the refund could not be maintained. However, the District Forum found that the time limit was six months under Section 11b of the Central Excise and Salt Act, 1994. Neither the dealer nor the manufacturer had taken steps to forward the claim to the Excise Department in time and thus there was deficiency in service on their part. The complaint was filed seeking refund of the amount of excise duty from respondent Nos. 1 and 2. The complaint was contested by all the three respondents, the dealer, the manufacturer and the Excise Officer, Aurangabad. Refund of Excise Duty could be claimed within a period of 90 days from the date of clearance of car from the factory premises. No record of Registration as a contract carriage was produced in time by the complainant. As such, amount could not be refunded. The question of jurisdiction of the District Forum, Aurangabad was also raised for the factory of the respondent No. 1 was located at Mumbai.

The District Forum directed that the complaint be returned for filing before the District Forum, Mumbai. On appeal, the Maharashtra State Consumer Disputes Redressal Commission, allowed the appeal and held Premier Automobiles jointly and severally liable to pay Rs. 28,000 with 15% interest thereon from the date of the complaint till payment plus cost of Rs. 30,000 to the complainant. Claim against Excise Department had been dismissed.

HAVING heard the learned Counsel for the parties and after going through the record, two points need our consideration: one relating to the claim of excise duty and the second relating to the jurisdiction of the District Forum. As regards the justification of filing of the complaint by the complainant is concerned, one has to take note of certain facts.

THERE is no dispute about notification issued about refund of excise duty in certain cases. In exercise of the powers conferred by Sub-section (1) of Section 5a of the Central Excise and Salt Act, 1994, the Central Government notified to exempt all the goods falling under heading No. 87. 03 of the schedule to the Central Excise Tariff Act, 1985 in respect of Saloon car. It reads as under: "provided that in a case where a Saloon car after clearance has been registered for use solely as a taxi, the manufacturer of the said Saloon car shall be entitled to a further exemption of duty of 10 percentage points subject to the following conditions, namely-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:

(ii) The manufacturer furnishes to the Assistant Collector 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 Collector may allow.

(iii) The manufacturer had not collected any duty 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

(iv) The manufacturer files a claim for refund of duty in terms of Section 11b of Central Excises and Salt Act, 1944 (1 of 1944 ). "

The car was purchased at Bombay. It was registered as contract carriage. The permit was issued at Aurangabad on 23. 1. 1995. Only thereafter the complainant/respondent could send the request for seeking exemption from excise duty. According to the respondent No. 1 the complainant had not sent to the RTO (Taxi permit particulars) to the respondent No. 2 manufacturer and informed the respondent No. 1 vide letter dated 17. 2. 1994 mentioning that the Registration particulars had reached for the purpose of seeking registration of the said car, as taxi. Since the period of limitation for submission of the Registration particulars to the Excise Department had expired, no further action was required to be taken by the respondent excepting informing the complainant. It is further notable that according to copy of the reply filed by the Excise Authorities, the notification itself specified the motor vehicle sold for use and registered for sale would be eligible for refund of Excise Duty of commercial purpose vehicle.

IT is not disputed that for refund for difference in Excise Duty (Concessional Permit) the manufacturer has to set out claim for refund with the concerned Asstt. Collector within three months. The purchaser was supposed to apply within three months from the date of clearance of the subject car from the factory premises through manufacturer. Otherwise the refund procedure lapses and becomes barred by the limitation of period prescribed under the rules of Excise Duty. This proposition could not be disputed.

IN this case, the car in question was purchased on 11. 10. 1994, obviously, it would have been cleared from the factory premises of respondent No. 1 prior to that date. Without there being permit for the said car which was issued on 23. 1. 1995 by RTO, Aurangabad, the period of 90 days had already expired. Secondly, when the taxi particulars were sent on 17. 2. 1995, if the dealer had not further forwarded and informed the situation on 17. 2. 1995 itself mentioning that the respondent No. 1 had delayed in filing the Registration particulars, it would appear that there was no deficiency in service on the part of respondent No. 1 in informing the purchaser respondent No. 1 about the factual position. As such, there was no force in the complaint. Since the vehicle was undoubtedly purchased at Mumbai, the dealer M/s. Wasan Automobiles had a branch office at Aurangabad, as is evident from Annexure R-1 at page 69 in Revision Petition No. 2322/1999, thus, the District Forum could have entertained this complaint even if it is supposed. But supposing Aurangabad District Forum did not have jurisdiction this point has lost its importance for no prejudice could be said to have been caused to either of the parties.

For the aforesaid reasons, we set aside the impugned order and hold that the petitioner was not entitled to claim the refund from the dealer and the manufacturer. However, we expect that (i) the dealer shall forward the complainant''s application along with the requisite documents; (ii) the manufacturer shall set their claim for refund with the concerned Asstt. Collector; and (iii) the Asstt. Collector concerned on receipt of such claim for refund may consider the claim of the manufacturer in accordance with law, in view of the peculiar fact that the delay has occurred on account of the fact that the permit was issued on 23. 1. 1995. However, we confirm the view of the learned State Commission that the complainant could not pursue any claim against Excise Department for granting refund or refusing it falls in their statutory duties. With the above observations, the impugned order is set aside, the revision petitions filed by the dealer (R. P. No. 2262/1999) and by the manufacturer (R. P. No. 2322/1999) are allowed accordingly.

PARTIES are left to bear their own costs. Revision Petitions allowed.